#Blagojevich trial: my observations 9 weeks, 39 days, 273 hours and counting...

Observations from the Blagojevich retrial:

Rod Blagojevich:

  It was the same old Rod as the last trial, minus the throngs of spectators each night lining the walkway to his car.  Last year, there would be lots of autographs to sign, television cameramen fighting for a spot, reporters with microphones in hand yelling questions,  pictures to pose for and always Patti yanking him by the hand that it’s time to go.  This year, for the most part, there was no driver – Patti would drop him off at the Federal Dirksen Building and then go and park the car. Gone, on most days were the spectators.  There were a handful of cameramen and a reporter here or there.  Blago fatigue has set in.

Except for a handful of big days (when Rod testified, when Rahm Emanuel and Jesse Jackson Jr. took the stand,) gone too were the long lines outside the Federal Building that formed as early as 4:30 a.m.

But it was essentially the same Rod Blagojevich.  Dressed to the nines, chatty, eager to schmooze, recite a famous quote, shake a hand, apologize for his language. The first day of the trial he spots me and some other reporters and we exchange hellos.  He says, “You guys make it a little less burdensome being here.”   And turning to my friend Courtney, a producer for NBC, he reminisced about playing Trivial Pursuit with us during the deliberations and said “I’ll do it again if it helps you.”

So here we are waiting for the Blagojevich jury at the retrial.  I have approximately 3200 tweets out there – there were about 2000 at the time of the first trial.  And thanks to “tweetbook” I have the entire trial in tweets- a diary of the court proceedings so to speak.  For me, my book of tweets is “F**n Golden.”

One of the first days of the trial, Rod stops by my table in the cafeteria.  One reporter says, “Governor, you look like a man without a care in the world.”  He replies,” The truth is on my side.”

Just a week or so into the trial, and the U.S. Marshals asked the reporters to refrain from engaging Blagojevich in conversation.  We explained that most often he approaches us.  And the marshals said, “We have addressed that.”

But engaging the public he did.  Here are a few memorable highlights:

•  April 27 8:55 a.m. The Governor enters the 25^th floor.  He sees a spectator with a cast on his arm.  Points to his arm and says, “You got a lawyer for that?”
• May 5 10:12 a.m.  On break – there is a group of 3^rd and 4^th graders from Glenview touring the Federal Building.  Blagojevich goes up to them and yells “Are any of you guys lawyers?” and then proceeds to tell them they should not go into politics- “become or teachers.” As he says goodbye to the kids, he adds, “If I had me you sooner I would have named you to the senate.”
• Sometime in the first couple of weeks I am seated behind Patti on the spectator side next to Courtney Copenhagen, NBC producer.  Rod comes up to us- we start talking about our dogs (Courtney and I both have labs).  Rod asks Courtney, “Did you walk your dog today?”  No, she answers, she has Louis the dog walker and adds that she gets an email from him when her dog Bailey poops.  Rod responds, “Do you email him back that that is F**N Golden?

And some moments from the courtroom:

• Before he first takes the stand, Rod is fidgety.  I tweet “If Rod straightens his tie (beautiful by the way-black and silver Hermes?)one more time his head will pop off his shoulders
• Rod’s daughter warns him to watch his language on the stand.  First thing, “I would like to apologize to the people of Illinois,” he says.
• Rod on the stand.  The defense shows a family photo of Rod, Robert and their parents when the boys were young.  Rod, “I never did like that picture."
• Rod on the stand referring to the “Effin Golden” tape – “When I hear myself on tape I’m am Effin jerk.”
• The first 25 minutes of Rod on the stand and we are only at the summer of 1974.  We hear details about his Aunt Helen that he liked very much.  And Ms. Dibble, his teacher that taught him Shakespeare.  Ms Dibble, Rod says died of breast cancer or maybe it was uterine cancer.  And he was sad about that and says a prayer for her.  And Rod was in a TV movie in Malibu.  Now the jury is fidgety too.  He talks about meeting Patti.  She gets choked up and starts to cry.  He gets choked up and we break for lunch.  During the break James Matsumoto says “If Blago would have testified during the first trial, we would have found him guilty for subjecting us to this."  We learn that Patti’s engagement ring cost $5000 at Marshall Fields.
•  On Twitter I describe this as “a courtroom filibuster.”
• When a juror sneezes, Rod says “God bless you” from the witness stand. Everyone chuckles.
• During his direct testimony Rod tries to get it in that his 12-year-old cousin died at Children’s Memorial.  The second time he tries, he says, “I am shaped by my life experiences.  My cousin passed away at 12 from leukemia.”  Judge Zagel responds, “Don’t do that.”
• June 1 -The 4^th day Rod is on the stand.  We are waiting in the courtroom to begin.  The jury has not yet arrived.  Rod, the former golden glover stands, looks at us reporters and air boxes.
• Day 4 testimony Rod says, “I would privately vent to Patti my disappointment that deals are not made based on righteousness but everything is a deal.”
• Today they show a photo of Rod’s home library.  He talks about his books, the busts of his heroes like Winston Churchill and how he loves the smell of books.
• June 2- the 5^th day on the stand.  Rod says “From beginning to end, Lisa Madigan (for senate) was always on my mind…and adds – not the song.”
• As Rod begins to give a list of initiatives that Madigan could help with if Lisa Madigan gets the senate seat, Judge Zagel interrupts and says “Just give the list without the campaign speech.”
• The Government begins their cross with Reid Schar shouting “You, Mr. Blagojevich are a convicted liar.”  Rod answers “yes”.  When Schar says Rod directed an aide to plant a news conversation with Jesse Jackson Jr., Rod admits this and calls it “a misdirection play in politics.” And when asked if he was concerned Rezko was cooperating, Rod began a long-winded answer.  Judge Zagel stopped and said, “Answer yes or no or that you can’t answer the question as opposed to answering the question you WISHED he asked.  Rod answers yes.
• Court ends for the day.  My final tweet: “Blagojevich got plenty beat up.  Reminds me of Clinton saying it depends what the definition of is is”
• Several times during the cross, Rod’s lawyers object and Rod says, “I want to answer that.”  And to the judge he asks, “Is it OK to override my lawyer?” Judge Zagel, “You’ve been doing it all along.”
• Blagojevich qualifies many questions with what looks like a too- rehearsed answer.  For ex:  regarding signing the race track bill “one not for the other”  “as long as it’s legal”, “not crossing lines” and “following the law.” “As long as one not for the other, that’s what I am all about.” This was one of the few times I saw a juror roll his eyes.  I tweet, “Sounds too rehearsed.”

 When it was all over, Blagojevich left the stand and went to the prosecution table and attempted to shake Schar's hand.  Schar turned the other way and walked to a sidebar.  After the sidebar, the Judge explained to the jury that the prosecutors are instructed not to have contact with the defendant. And so went the day.  Unlike Blagojevich, he did not come to the microphone and speak to the press.  (Perhaps he remembered that in the first words of the cross the prosecutors brought up how in the last trial he when he went right downstairs and talked about the testimony).  Instead he went outside and signed autographs.

 

 

And as the jury deliberated the first day, Rod had to come to court to request not to appear if there are jury questions.  We were all in the courtroom when he arrived, listening to his lawyer’s motion for mistrial.  Another lawyer was also in the courtroom, seated with a prisoner in an orange jumpsuit.  When it came time for the judge to speak to Rod, Judge Zagel asks him to come forward.  Unbelievably, Rod puts up a finger towards Judge Zagel and says “just a minute Judge” and walks to the defense table to shake hands with the lawyer waiting for his case to be heard.  Just another hand he couldn’t help but shake.

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My Observations:  The Government:

This time, the prosecution’s case was way more understandable.  Gone are the racketeering charges which were complicated and hard to understand.  Lon Monk testified early on at the first trial and because he was so closely involved in many of the schemes, there were lots to cover and so a huge amount of information and tapes were played right out of the gate.   The result?  Too much information thrown out too fast.  Very confusing from day one.

There were 32 government witnesses at the first Blagojevich trial.  At this trial they had 18 witnesses.  The jury was made up of 6 men and 6 women (one juror was dismissed early on due to illness).  The jury deliberated for 14 days.

At the retrial, the government put on a more concise, streamlined, and easier to follow case.  This time they had had 15 witnesses presented over eleven days (18 if you include 3 rebuttal witnesses.  They started with John Harris, Blagojevich’s chief of staff who all in all was a much more believable witness than Lon Monk.  (They were both cooperating but Monk admitted lying about taking money from Rezko)  There were 20 days of testimony (as compared to 19 at the first trial).  Blagojevich testified at the retrial, spending 7 days (27 hours) on the stand.  The retrial jury is made up of 11 women and 1 man.  Everyone agrees on one thing - that poor man.

Prosecutor Carrie Hamilton's recurring statement about Blagojevich in her first opening was "What About Me?" as she portrayed a Governor out for himself. 

At this trial Hamilton told the jury that “The governor made demands.  Sometime subtle.  As sometimes as subtle as a freight train.”  And as he outlined the schemes, he made it clear- the demand was the crime.

The first trial had 17 more witnesses. Witnesses testified about the Illinois Finance Authority, the Teacher’s Pension Fund, threats to the Chicago Tribune editorial board, and had numerous conversations that dealt with Tony Rezko, Chris Kelly and Stuart Levine. The government went into excruciating detail about the Blagojevich’s finances and Patti’s work in the real estate business.  We learned that Rezko financed a room addition for the Blagojevich’s. All of this was excluded at the retrial.

Hamilton went through the  20 charges, providing the jury with a roadmap and what tapes to listen to as she explained each scheme (the senate, the race bill, the toll way, Children’s Memorial and the Chicago Academy).  And always, she emphasized that the scheme did not have to be completed.  “Focus on the attempt,” she told the jury.  “Not if the attempt is successful” and “The law focused on the ask.”  “The Harm is done when the ask is made- that is the violations of the people’s trust.”

Hamilton then outlined the Governor’s defenses:

1. That he had not decided – this is not a defense, Hamilton explained.  The charges focus on whether or not Blagojevich committed personally or through other people action for personal benefit.  Hamilton emphasized that Blagojevich says “I would take HHS in a heartbeat” and it’s meaningless that it’s a long shot.  “His whole political career has been a series of long shots<” Hamilton said.

     2. Was not “one for the other” It was! Hamilton said.  (At this point in the closing, Blagojevich shook his head no-I am sure the jury saw that).  HHS, the 501c4 both for Valerie Jarrett. Hamilton said “It’s a trade,” Hamilton told the jury.”He uses the word…for the senate seat.”  Hamilton pointed out that Balanoff testifies it was one for the other.

      3.  He was always considering other options.  To this point Hamilton provided an example of a man who needs money and decides to rob a bank or steal wallets.  He also applies for a job.  He plots and plans how to rob, what bank, whether to write a note.  He tries to rob a bank.  “It's not a defense,”Hamilton said, “That at the same time he is plotting and planning he is really thinking about applying for a job at 7-Eleven.”

Regarding the senate scheme, Hamilton points out to the jury that on 12/4 Harris says to the Governor regarding the $1.5 million the conversation is in present tense.  She says that in fact, the Governor directs his brother to go get it.”Here’s what you got to do...you got to talk to Raghu…stuff gotta start happening now.”    Hamilton tells the jury, “He’s directing his brother to take a bribe.  Present tense.”

Blagojevich’s explanation on direct examination, Hamilton says is “tangible, political support.” Hamiton said that Blagojevich said that he was referring to the mortgage foreclosure bill.  “Nayak had nothing to do with the mortgage foreclosure bill,” Hamilton said.  “It was completely made up.  The words on tape make his guilt crystal clear.”  And in reference to teling his brother to be carefiul, Hamilton says, “Why do they have to be careful? It’s not about the mortgage foreclosure bill.”

Hamilton then told the jury that Blagojevich’s brother immediately sets up a meeting with Nayak.

But his efforts to take a bribe, Hamilton said, were thwarted.  That night he learned that John Wyma was cooperating with the FBI. And in a call the following morning at 7:25 a.m. Blagojevich directs his brother to cancel the meeting with Nayak.  Hamilton says, “It’s not about the mortgage foreclosure bill, it’s about bribes.  And why cancel the meeting if it’s not about bribes?”

On direct examination Blagojevich says he cancelled the meeting because he was too busy.  On the recording, Hamilton points out, he says “Cancel the meeting.  It’s too obvious.”  And then later that day, Dec. 5, the Friends of Blagojevich office is swept for bugs.

Hamilton points out that the wire fraud is the planning, the scheming.  How do you know the scheme existed?  Hamiton says, you know from the defendant’s own words, from Balanoff, Harris, Scofield, Wyma and Greenlee. “On tape and testimony they all tell you the same thing. He tried to get personal benefit for himself in exchange for state action.  The personal benefit?  A high –paying job, HHS, ambassadorship, a place on a corporate board, Change to Win, a 501c4 and campaign contributions.

Hamilton then went through all 20 counts, directing the jury to listen to the relevant tapes. 

Hamilton point out in regards to the racetrack bill, “If you are really concerned about the appearance that they are related (the contribution and the signing of the bill) and they are not, you sign the bill and then get the contribution.

Monk testified that the bill and the contribution were not two separate conversations.  And Johnston testified that the two were not two different subjects.

Hamilton points out that the defendant says Monk is a liar and that he was trying to save himself.

And here was the one comment Hamilton made that I thought was ridiculous:

“If you were really trying to save yourself (speaking of Monk) why admit to taking money from Rezko?  Why not say yea, I got money from Rezko and split it with him (Blagojevich)."

Huh?  Wouldn’t there be a money trail?  This was farfetched, in my opinion.

Hamilton also tells the jury about “false stories.”  Among them, “poison pill language” (language hidden in bills my Mike Madigan) - Hamilton says the poison pill language is “not borne out anywhere on tape.”  And regarding Chris Kelly wanting a pardon, Hamilton says, “The first time he hears about a pardon is 11/27.  He has already put a hold on the bill on 11/26.  This is made-up- after –the-fact – an attempt to confuse you,” Hamilton tells the jury.

Hamilton also makes a point of Blagojevich’s lack of memory. “He quoted verbatim exact transcripts of calls from two years ago,” Hamilton told the jury.  “Where Kroezel sat and how he offered him soda.  Suddenly he has amnesia on the facts.”

Hamilton also told the jury when listening to the calls, not to listen just to what is said.  “Listen to the tone, the tenor.  He is detailed, serious, focused.  You hear a sophisticated and very desperate man who was trying to get things for himself.”

Hamilton ended her closing argument with “The government is supposed to exist for the good of the people, not the other way around.  What the evidence supports and the law demands, is that you find him guilty as charged. “

The Government’s Rebuttal:

  Reid Schar emphasized:

• In the defense argument- that this was a government frame-up- that the government lied to the jury – that Blagojevich didn’t get HHS- so there was no crime.  Schar said:  “He made a decision and he did take action.  You see it on tape and you hear it from the witnesses.  He sent his brother to Nayak. He sent messages through Tusk.  “It’s not that he talked too much.  It’s that he talked a lot,” Schar said.
• The idea that Blagojevich hadn’t made a decision is ludicrous.  “He said he would do Valerie Jarrett in a heartbeat.”
• He had four lawyers and they couldn’t stop him (referring to him answering more than just the question) – the Judge struck testimony – despite the fact that the Judge cut testimony, he snuck it in.”
• The defendant is in fact a convicted liar
• In response to the defense claims that “we found a bunch of people to come in and lie to you and frame an innocent man, Schar said, “Is the defendant lying?  Or is everyone else lying?  And then he listed:

-          Richard Olsen

-          Eric Madsen

-          Patrick Magoon

-          John Wyma

-          Bradley Tusk

-          Tom Balanoff

-          Doug Scofield

-          Bob Greenlee

-          John Harris

-          John Johnston

 

And said, “They are all here at the Government’s urging to frame him.” 

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The Blagojevich Defense:  My observations

 

Aaron Goldstein took the floor and channeling Sam Adam Jr. at last year’s closing in a booming, almost yelling voice reiterated what he said in the open that this case was “about nothing.”  Pacing in front of the jury Goldstein said, “He didn’t get at dime, not a nickel, not a penny…nothing!”

Goldstein told the jury that they (the prosecutors) want to give you a hypothetical – nowhere near reality, so you could stamp it Guilty.  Referencing the government’s analogy of a policeman soliciting a la politician has the right to ask for campaign contributions.”

The cop analogy makes no sense, Goldstein told the jury.

Blagojevich’s “walk to the witness stand” took courage Goldstein said and was something he did not have to do.

Goldstein then reminded jurors that most of the witnesses had immunity or plea agreements.  He spoke of Lon Monk taking money in a Fed Ex envelope and said, “What made it a gift?  Was there a bow on it?  Did he report it? No.  Did he pay taxes on it? No. The only gift he got was not being prosecuted.”

Again, reminiscent of Sam Adam Jr., Goldstein would change the volume of his voice, speaking right in front of the jury and his voice down to a whisper so quiet those of us seated in the courtroom could barely hear him.

He went on to say that what they heard in testimony and tapes was “a lot of talk- a man thinking out loud.  You heard his testimony….that’s him.  That’s all you heard.  And they want you to believe his talk is a crime.  It’s not.  He testified 7 days.  He gave you nothing.  Listen to what he said. There was no criminal intent whatsoever.

Goldstein that went through each of the schemes. And every few minutes there was the refrain “the case is about nothing.”

He disparaged each of the witnesses saying for example that Robert Greenlee “tells you about a call that did not happen whatsoever."Look at the actions.  The actions speak louder than words.”

And later, about the senate seat, “Rod talked a lot.  He talked and talked and talked.  He even overruled my objections.”

Goldstein finished saying “Rod, it’s an honor to represent you.”I’s been a burden to represent you for the last 2 ½ years.

For a case that was about nothing, this defense team struggled.  On Monday May 9 the defense began their cross-examination of John Harris.  In the first few minutes, 18 objections are sustained by Judge Zagel.  Discussing the ethics bill, five more rapid fire objections sustained.  With discussion of Madigan, the capital bill and the trouble the Governor had passing legislation, there are many more objections.  It is 10:04 a.m. and there are already 43 sustained objections. The conversation turns to Chris Kelly and Judge Zagel admonishes Goldstein.  Now they are asking Harris about being an attorney, a place the Judge warned them not to go. The prosecutors ask for a sidebar.  Judge Zagel tells them to move on.

Move on they do.  Right into 26 more sustained objections in 20 minutes.  By the end of the morning. There were 79 sustained objections.

After lunch- more objections come rapid fire and are sustained.  The Judge to Goldstein, “Confine your questions to what happened on direct exam.”

In the next few hours there are more sustained objections. Judge Zagel says to Goldstein:

• “You are way outside the scope
• “You are asking about that which is inadmissible and unreliable”
• “This man (John Harris) was called to testify  about things he has witnesses, not what he is generally aware of ”
• “There is a way to get this into evidence.  I expect someday you will use it.”
• “I don’t want argument disguised as a question” (with Tom Balanoff on stand)
• In regards to asking Balanoff if after their meeting did you call authorities? Judge Zagel to Goldstein “If this is near the end of your cross, you can stop now.”
• After numerous objections, the Judge says, “I’m very close to sitting you down.  If you continue I will sit you  down.”
• Judge to Goldstein, after the jury leaves the room “You are implicitly and explicitly outside of my order.  If you continue I will sit you down.”
• Judge:  “I have made my ruling.  My ruling is very clear.  It’s not the first time.  I don’t want you to respond, I want you to comply.

On Wednesday, May 11, Attorney Lauren Kaeseberg moves for mistrial.  She tells the Judge they have been “cut off at the knees…we look bad in front of the jury…we look like buffoons.”  Zagel denies the motion and adds “I will not permit you to address anything outside of the scope because the last time it was abused.”

On Thursday May 12^th, Robert Greenlee is on the stand.  Goldstein says to Greenlee “You speak English, correct?”  The Judge to Goldstein, “Don’t do that.”  It is 10:43 a.m. and Goldstein has 38 objections by the prosecution sustained.

Later that afternoon, Sheldon Sorosky is cross-examining John Wyma.  Sorosky tells the Judge it is troubling to have to reveal questions to the government before they are asked.  Judge Zagel responds, “I gave you a lot of bites of the apple at the first trial.  You are out of bites.

Sorosky is later admonished after blurting out  “that’s a warped, slanted interpretation” to something Wyma says.  Judge Zagel says, “You can do that at closing.  If you keep doing it now, I will take time away from you at closing.”

When Sorosky asks Wyma, “Do you realize you are under oath?” the Judge admonishes him saying it falls into the category of civility.  And when Sorosky tries to get Wyma to repeatedly to explain what “F**em” means, the Judge says, “It’s beyond his expertise.  You can call someone to testify.”  Sorosky had 44 objections sustained in the first hour of cross with Wyma.  And after 55 objections, the Judge says to Sorosky, “Please stop - this is an attempt to mislead the jury.”

On May 18^th the sustained objections continue.  During the cross of Lon Monk, Sorosky has 129 sustained objections.

On May 19^th, during the cross of Bradley Tusk, the barrage of sustained objections continues.  Sorosky apologizes to the Judge.  The Judge responds, “You shouldn’t do that twice.”

Just seven minutes later and the Judge warns Sorosky again. Judge says, “You are now into closing arguments. This is the last warning or I will sit you down.”

Ultimately, the defense team filed a motion for mistrial stating they were unable to ask meaningful questions during cross and "an erradication of the presumption of innocence."  They also stated that have been prevented from asking basic questions that impeach the credibility of every witness in the case. In addition they were required at "an incrasing and alarming number of times" to preview questions or arguments. In addition, they charge that potential jurors were removed from the jury pool.

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Judge James Zagel:  My observations

 Judge Zagel is a smart, no-nonsense judge who attended the University of Chicago and Harvard Law School.  Appointed to the Federal Bench in 1987 by President Ronald Reagan, he has presided over many high-profile cases including Family Secrets Trial in 2007.

A man of many talents, Judge Zagel is an author of a novel which he published in 2002, Money to Burn, a fictional thriller about a plan to rob the Federal Reserve Bank.  He even made an acting debut in 1989 (using a stage name of J.S. Block) when he appeared as a Judge in a movie called Music Box

Shorter than I expected (he looks so much taller up there on the bench) I was taken aback the first time I saw him in the Federal courthouse cafeteria.  He has a full head of grey/white hair that most men his age would envy and sketch artists have commented they love to draw him as he has very striking facial features.

Not exactly a fan of the media, Judge Zagel, unlike other trials I have covered, has not made it easy on reporters.  While he does allow blackberry use as long as it’s not obvious to the jury, he makes no effort to notify the media when the jury has a question and even when the verdict came at the first Blagojevich trial, there was no official word until we already had an inkling and were waiting outside the courtroom for over an hour.  And perhaps most frustrating of all is his tendency to speak softly.  Even with the microphone, he voice often trails off leaving all of us asking each other, “What did he say?”

Having spent almost four months in Judge Zagel’s courtroom (at both Blagojevich’s trial) I found his occasional insertions of humor into the court proceedings both unexpected and my favorite part of a long day in the courtroom.  Here is a sampling – I call them Zagelisms- from jury selection:

• Administrator of pension plan.  Her hobbies are kids, running, cleaning.  Judge Zagel: “If I were in your position I would not put cleaning as a hobby.”

• To one Juror who said she watches Judge Judy “It’s not much like that” 
• To one juror who owes the University of Chicago a thesis, “The U of C holds the world’s record for waiting.”
• To one juror who told of her son getting in trouble with the police “Did you think of strangling your child?”
• To a sleep disorder technician, “Is that when you see someone sleeping with all kinds of stuff attached to them?”
• To a man who said belongs to Indian Princesses “Is that where fathers and daughters come together and wear feathers and stuff?”
• To a man with 6 grandchildren “Do they run faster than you do?”
• To a man who said he used to be a news junkie but now only spends about 3 hours a day on the news “At what amount of time do you become a news junkie?”
• Another mother with kids who got into trouble “Which one did you want to hit on the head?”
• To a retired man who said his hobbies are babysitting and motorcycles “You don’t do those at the same time do you?”
• To a man in his 60s who explained he only recently know his dad went to prison as a young man “Your family decided you are finally old enough to know?”
• When asking a woman how much news she gets from the Internet “Do you go to the Internet just to keep current or you can’t wait to turn on your computer and check the banking laws in Slovenia?”
• To a woman whose hobbies include poker and bridge “I don’t want to ask what you play for – actually I would like to know but can’t ask.”

 

As much as I appreciated Zagel’s humor, I know too, that the defense team found little to laugh about when it came to the judge.

He clearly has been tough on the defense team.  At the first trial, he set the ground rules early – there would be only one sidebar a day.  Several times I remember Sheldon Sorosky raising his hand, asking for a sidebar only  to have the judge say, “Are you sure you want your only sidebar now?”

The Judge stated that at the first trial he gave the defense more latitude – in part because Blagojevich’s lawyers had promised Rod would take the stand but the defense did not deliver on that promise.  The second time around, Judge Zagel  let it be known that he had given the defense leeway in the first trial that he hasn’t  given in other  criminal trials. He made it clear in the retrial that he would not allow certain testimony ( such as -he acted on the advice of his lawyers or the “politics as usual” defense or saying actions were "legal").  And when the defense team ignored the parameters he had set, that made him mad.  He dressed down Goldstein and then later Lauren Kaeseberg – accusing them of smuggling in testimony.  The defense teams bold disregard for Judge Zagel’s restrictions,  was evident in the incredible amount of sustained objections- there were days there were hundreds in just half a day.  Here is a sampling of what when on:

 

On Monday May 9 the defense began their cross-examination of John Harris.  In the first few minutes, 18 objections are sustained by Judge Zagel.  Discussing the ethics bill, five more rapid fire objections sustained.  With discussion of Madigan, the capital bill and the trouble the Governor had passing legislation, there are many more objections.  It is 10:04 a.m. and there are already 43 sustained objections. The conversation turns to Chris Kelly and Judge Zagel admonishes Goldstein.  Now they are asking Harris about being an attorney, a place the Judge warned them not to go. The prosecutors ask for a sidebar.  Judge Zagel tells them to move on.

Move on they do.  Right into 26 more sustained objections in 20 minutes.  By the end of the morning. There were 79 sustained objections.

After lunch- more objections come rapid fire and are sustained.  The Judge to Goldstein, “Confine your questions to what happened on direct exam.”

 In the next few hours there are more sustained objections. Judge Zagel says to Goldstein:

• “You are way outside the scope
• “You are asking about that which is inadmissible and unreliable”
• “This man (John Harris) was called to testify  about things he has witnessed, not what he is generally aware of ”
• “There is a way to get this into evidence.  I expect someday you will use it.”
• “I don’t want argument disguised as a question” (with Tom Balanoff on stand)
• In regards to asking Balanoff if after their meeting did you call authorities? Judge Zagel to Goldstein “If this is near the end of your cross, you can stop now.”
• After numerous objections, the Judge says, “I’m very close to sitting you down.  If you continue I will sit you  down.”
• Judge to Goldstein, after the jury leaves the room “You are implicitly and explicitly outside of my order.  If you continue I will sit you down.”
• Judge:  “I have made my ruling.  My ruling is very clear.  It’s not the first time.  I don’t want you to respond, I want you to comply

 

There are those who feel that Judge Zagel is the prosecution’s judge.  Others feel that the defense team’s actions – trying any which way to get the jury to hear that which was not allowed – rightly earned the defense team the wrath of Judge Zagel.

Clearly, Judge Zagel made some bold statements during the trial.  Among them (paraphrased):

• The 501c4 was “like money in the bank”
• That the “Madigan deal” (Blagojevich’s naming Lisa Madigan to the senate in exchange for legislative favors by Michael Madigan) was not a deal at all.  Judge Zagel described it as “a phantom deal” evidenced by the fact that there were no emissaries, no tangible evidence – only something Blagojevich talked about.
• That he had given the defense team many “bites of the apple” at the first trial and they were now out of bites

The defense team filed several motions for mistrial.  They stated they were prevented from asking any meaningful questions, prevented from playing tapes they felt were relevant and that there was “improper removal of jurors from the jury pool.”

 

Here were some of my observations regarding the jury pool that I made at the time:

 

Jury selection proved to be more difficult this time, taking 5 days as compared to 3 at the first trial.  We heard recurring concerns from financially strapped jurors that sitting on this jury would be a financial hardship.  We heard from one man who had been out of work for 18 months and was about to start a job, and one woman who feared losing her house if she sat on the jury and lost pay.

The defense and prosecution took jabs at each other during the challenges.  At one point Judge Zagel clarified that "It is Ok to call an objection stupid but talking about each other is crossing the line."

The Defense had a bit of a meltdown on Thursday during the challenges of jurors for cause.  Sheldon Sorosky complained that the Judge ruled to keep in some prospective jurors who thought Blagojevich was Guilty and failed to retain those who said he was innocent.

"The government is moving to exclude the only two people who said they think the defendant is innocent," Sorosky said.  And of one woman he said, "She happens to be a woman of color - that's not fair and right."

Judge Zagel replied that he did not believe the race of the juror had any bearing in excusing her from the jury.  The woman was ultimately excused due to financial hardship.

Sorosky ultimately brought up Batson challenge and said "We are in Batson land here" implying that jurors were being dismissed according to race.  Zagel replied that "race had no bearing."

The conversation escalated to Judge Zagel posing the question to Sorosky "Why am I here?"  He went on to explain that the questionnaires  are only one tool in learning about a juror.  The judge is there to discern the depth of feelings expressed, if the person speaks artfully, if they change their minds and their demeanor.

And Judge Zagel ended court warning the defense not to argue in opening statements that the Governor did not know that what he did was wrong with regard to the senate seat because his lawyers didn't tell him it was wrong.  Specifically, John Harris was referred to  in the first trial as a special counsel, when in fact he was not acting in the capacity as the Governor's lawyer but rather was his as chief of staff. "He is not allowed to suggest he was special counsel," Zagel said who suggested that was misleading.

In the first trial, because Blagojevich promised to take the stand, Zagel gave more leeway knowing that he would be later be questioned by the prosecution.

Judge Zagel also alluded to the fact that if the defense wants that information to be entered into evidence, it needs to come from the Governor himself.

 

Later, Lauren Kaeseberg stood before Judge Zagel and said “You may not like us, and you may not even like our client.”  And then, in what I found to be a shockingly bold move, told Judge Zagel the defense team believes there was never a presumption of innocence at this trial.

Quite a statement to make. And one Kaeseberg made in a very poised, calm and articulate manner.