Chicago Sun-Times
Inside the Rod Blagojevich investigation and related cases

Judge Zagel threatens to hold Blagojevich lawyer in contempt; attorney vows to go to jail

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Reporting with Natasha Korecki, Dave McKinney and Abdon Pallasch

A fiery clash between Rod Blagojevich's lawyer and judge broke out at the end of court, with the judge threatening to hold Sam Adam Jr. in contempt of court if he didn't abide by his ruling and Adam later vowing to go to jail over the dispute.

The jury was out of the room when the clash happened. It ultimately sidetracked the trial for the day and it's back on tomorrow morning.

Zagel told Adam he could not tell jurors in his closing argument that the government had refused to call 35 witnesses named in the indictment, including Tony Rezko, Bill Quinlan and Stuart Levine.

"I don't want to get into the classic mode that if the facts are against you and the law is against you, then attack the opposing lawyer. That's all you're doing," Zagel said. "The fact is, you cannot draw an evidentiary inference from the fact a witness was not called by the other side when you had an equal right to call them."

"I have been more deferential," Adam responded, "but with all due deference to the court, I have a man here who's arguing for his life ... I can't effectively represent this man ... I can't follow this order."

"You will follow this order, because if you don't you will be in contempt of court," Zagel shot back.

Zagel said he would send the jury home for the day and give Adam time to rework his closing.

"I can understand, given your profound misunderstanding of the legal rules, perhaps you're not prepared to argue," the judge said. "It may be possible for you to designate another lawyer to argue for your client if you're incapable of following my rulings."

After the sidebar, Adam came back to the defense table and put some items into a briefcase. Rod Blagojevich walked over to him and the two shook hands and exchanged words.

The judge has adjourned court for the day. We will reconvene at 9:30 tomorrow with the rest of the closing arguments.

After court, Sam Adam Jr. said said he would go to jail "in a heartbeat" if that's what it takes. "I have no qualms of going to prison if that's what's best," he said outside.

Asked if he thought the judge was fair, Adam Jr. turned and smiled.

"You know I can't answer that. But I think you know the answer," he said.

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This is where I think Zagel made the error. The prosecution in the case and intheir closing referred to patti being paid by Rezko thousands of dollars for work she never did. There was no sirect evidence that is was for no work. Only two people could tesitfy to that point Patti and Rezko.

The feds put on an underling of rezko who said he cut the check but didn't see her do work. Adam SHOULD be allowed to mention rezko and the lack of his appearance on this topic. the defense doesn't have to PROVE there was actual work. The prosecution has to prove there was NO work done. maybe patti did sexual favors who knows.

The point is the defense should be allowed to argue that the feds did not prove this point since they never called Rezko who was the ONLY person with direct knowledge.

Judge Zagel properly admonished Sam Jr. of the consequences of defying the court's order; if Sam Jr. raises the issue of the prosecution's failing to call those witnesses, the court would then instruct the jurors that the defense could have also subpoenaed them, thus having Sam Jr. torpedo his client's case before the jury! Sam Jr. then likely would have to serve six months in the Metropolitan Correctional Center for direct contempt, thus sending his other clients scrambling for new representation, and also face bar discipline, including possible disbarment, before the ARDC.

Blago would benefit in that Sam Jr. would ensure him an almost certain "ineffective assistance of counsel" claim and a guaranteed new trial. That all would come at the expense of Sam Jr.'s legal career! The type of theatrics tolerated at 26th & Cal, will not fly in Federal District Court! Would Sam Jr. make that sacrifice for the likes of Blago? Would he let his client's daughters see him taken off the floor in Handcuffs?

Most likely the defense closing will be dumped in Sam Sr.'s lap, who will then have to explain to the jury why Blago did not testify, after Sam Jr. said that he would!
That will be an unenviable task: a father batting clean-up for a self-centered incompetent son!

The judge should grant his request and send him to prison. Lawyers like this give the profession a bad name.

I agree with @kippie773 that everyone has to give Zagel a chance to tell the truth

Judge Zagel should give Sam Jr what he wants....PRISON TIME. Real prison time, not 30 minutes, not 3.5 hours...if Jr wants to go to Prison...Judge Zagel should oblige and sentence him to 30 days in Cook County, General Population of course. Let Jr learn about life.

Upon request, a trial court may be required to instruct a jury on the "inference" the jury may draw from the failure of the People or the defendant to call a witness, provided that the following three tests are met:

(1) There must be a "pending issue" upon which evidence is already in the case about which the "uncalled" witness would naturally be expected to support one side or the other;

(2) the "uncalled" witness must be "knowledgeable" on the "pending issue;" and

(3) the witness must be one who is found to be under the "control of" and "available to" the party failing to call him or her.

Howard, Rezko meets all three tests, and is in federal custody, after having been previously charged and convictead by the same USAO, and to the best of my k nowledge he is incarcerated in an undisclosed location.

Note about the earlier in the trial the defense being warned about leading hear is the rule-funny it seems pretty clear they can(Federal Evidence Rules)
Rule 611(c). Mode and Order of Interrogation and Presentation
Leading Questioning
"Ordinarily leading questions should be permitted on cross-examination."
I like to see a higher court rule a mistrial, but I doubt it. Rod should probably go to jail, though it should be done the right way in a fair an just manner.

Is this freak an actual lawyer, or is he auditioning for the latest over-wrought TV court drama coming out in the fall schedule? Nepotism is alive and well. Who graded his bar exam; did daddy buy someone off?

Dude needs to go find some friends so he stops hanging so hard on daddy's shirttails.

You know, him going to jail may be the best thing that ever happens to him.

So last week the defense said the reason they didn't call witnesses was because the prosecution proved their clients innocence. Now the defense is crying because they cant effectively represent their client as a result to not being able to question witnesses they didn't call to the stand.

Good Stuff!

By the way jury instructions are different then closing arguments, if either side got everything they said in closing arguments included in jury instructions, the trial almost wouldn't be necessary. Jury instructions are suppose to be purely based on the application of the law not on the subjective opinions of either side(and there was clearly a lot on both sides not just the defense)

Howard resko is a cooperating witness, the only reason the feds didn't call him was because in his initial trial he accused the prosecutors of misconduct(he said they were trying to force him to lie about Blago) and on cross he would have been eaten a live for it. But he was under there control because of the deal he is trying to workout for sentencing.

Magnificent theater by Sam Adam Junior jealously representing his client's "interests" (to let guilty Rod go free).

Originally Zagel said if the defense tried to mention the witnesses that weren't called, he would interrupt the closing and tell the jury that the defense also had subpoena power. Now, he's changing the game -- saying he will hold the lawyer in contempt. I cry,"foul." Zagel should do what he said he would do -- let the defense mention the fact that the prosecution's key witness, Rezko, was available but never called, instead allowing in hearsay (and I still want to know how in the world that was allowed). Then Zagel, can give his -- the defense had the power to subpoena talk -- and the defense can come back with the government's responsibility to prove guilt beyond a reasonable doubt. I don't see any problem with doing that. A lawyer being thrown in jail on contempt for defending his client looks bad, especially considering all the other, to me, questionable calls -- like telling the defense during the prosecution's case in chief that it can't use a potentially exculpating tape (on cross) (I'll hold my nose and appoint Lisa) UNLESS Blago takes the stand, which he has the right NOT to do.

"These are not the droids you are looking for, ladies and gentlemen of the jury."

The state held people out as complicit or possessing knowledge of criminal acts. Now, after not calling them as witnesses, basic fairness dictates that the state explain to the jury why these, people... are not relevant anymore. Likewise, the accused should be allowed to explain to the jury that trials are organic things, and that the state's case fell apart -- the state did not even call it's own witnesses.

To say otherwise is to allow the state to rattle off all kinds of names in any criminal trial, giving a jury reason to believe that the few people who are called as witnesses are credible because a greater number of people are in the wings -- people who are never called. The act itself is a rogue form of witness bolstering by the state. The empty chair prosecution. Garbage.

Finally, the accused never has a duty to put on a defense. When it chooses to do so, it cannot be required to contact and perhaps call the state's witnesses. Remember, the state may present rebuttal and impeachment witnesses after resting the state's case, so why the law would require the accused to call the state's witnesses is beyond notions of fair play. It means that the the accused has the burden of proof, not the state. The accused should not be penalized because the state piled on witnesses, bolstered its case, and then failed to carry through.

Here is the law:

Upon request, a trial court may be required to instruct a jury on the "inference" the jury may draw from the failure of the People or the defendant to call a witness, provided that the following three tests are met: (1) There must be a "pending issue" upon which evidence is already in the case about which the "uncalled" witness would naturally be expected to support one side or the other; (2) the "uncalled" witness must be "knowledgeable" on the "pending issue;" and (3) the witness must be one who is found to be under the "control of" and "available to" the party failing to call him or her.

Judge Zagel was correct. These witnesses were not under the control of the prosecutor. The defendant could have subpoenaed them.

The prosecution is going to list every possible witness at opening. That doesn't mean they are required to call them to testify. They certainly aren't going to call someone they don't feel will help their case. The defense is perfectly welcome to call their own witnesses. Oh, that's right... the defense didn't CALL any witnesses. The defense is just sitting back and hoping they can point a finger at the prosecution and say, "Oh, look here. You missed a spot. We win." Great defense.

Rod - next time don't pick a lawyer who graduated 1st in the school of affirmative action

What BS. Of course if he can argue as he wants, the prosecution can excoriate Blago for not testifying as he's been trumpeting he would for the past year and a half.

I guess then fathers (or mothers) don't have to follow child support orders because they don't agree with the order. Maybe, parents don't have to abide by visitation orders because they don't agree with the visitation rights in the order. Maybe, then people who are the subject of orders of protection shouldn't have to follow the order because they don't believe that requiring them t0 stay away from the protected person to be fair. Who does Sam Adam Jr. think he is to just defy an order? What kind of example is this to others who are subject of court orders?

This judge seems to be auditioning for the Supreme Court. He's inept enough to fit right in with the current group.

Just let him talk, what is the government so afraid of? By barring and banning topics for closing you are bringing more attention to it. Do you honestly think the jury don't know what happened today?
It's another chink in the govt's weak case. I don't see how they can covict this man. The jurors heard more evidence and inuendo and trash talk before this case even started and the case was weaker than anyone ever anticipated and the jurors heard nothing new. This thing is bleeping golden, so what???????

Thats outrageous he can't point that out, his point is that it is not his job to prove the case he doesn't need to, but the government does have to(remember the burden on proof falls on them) and if they have left question unanswered he has a right to point that out defense lawyers do that all the time, and its legal.

And on the point that hes attack the lawyer that a ridiculous claim clearly he trying to say that the governments cased need these witness to prove there case and without their testimony it is difficult to find his defendant guilty because hersay evidence should never be used when you have the source(face your accusers come on).

The ruling by Judge Zagel seems to be in error. Although the prosecution cannot argue any inference as a result of the Defendant not testifying, which would violate the Fifth Amendment and the presumption of innocence/burden on the State, it is irrational to gag the defense lawyer who has every right to refer to the absence of witnesses previously mentioned by the State. Assuming for example that the feds mentioned witnesses in opening that were not called, the failure to call the witnesses does create an inference that they would not be reliable or would not testify as represented by the government. Most certainly the Jury should be alerted to the absence of such testimony and make such inferences as may be reasonable in their own minds. This is the purpose of argument and Jurors are entitled to such consideration.

Guilty. btw, does Blag still have to pay the attorneys since they did not put up a defense?

Zagel is my hero. The Adamses are clowns. But how do you defend an idiot? Make Blago, spider Eatin Patti & their Bratz go away. Those poor kids will have some memoirs

Zagel is no Ito

Sam Jr. is clearly in over his head. This will allow him to bow out gracefully and let his daddy take over.

What a jackass. Grow up, Junior. Welcome to the major leagues.

You have no defense so muddle thing up. Typical theater.!!

Zagel is the hero of this trial. No one really posts on these boards (except when crazies see Obama's name pop up on their Google News), but I just can't say enough good things about the reporting over here. This and Cap Fax are the only coverage I'm following (and he mostly just links to you guys).

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This page contains a single entry by Sarah Ostman published on July 26, 2010 4:19 PM.

Robert Blagojevich attorney to jury: You heard the government prove my client is innocent was the previous entry in this blog.

Sam Adam Jr.: "I have no qualms of going to prison" is the next entry in this blog.

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