Attorneys Wrap Up Closing Arguments in Blagojevich Trial; Jury Returns Wednesday for Deliberations

Rod Blagojevich Trial Extended Coverage >>

Chicago - At times whispering, bellowing and facing objections from the prosecution, Blagojevich defense attorney Sam Adam, Jr. delivered his closing arguments Tuesday despite a clash with the judge the day before.

Adam, Jr. said Blagojevich was guilty of surrounding himself with the wrong people, but didn't break the law. However, the prosecution said Blagojevich can't claim to be "the accidentally corrupt governor."

The jury begins deliberations on Wednesday.

Key Points:

• In his closings, Adam, Jr. said Blagojevich "ain't corrupt" and told the jury to blame him for Blagojevich not testifying. He said the governor had "absolute horrible judgment on people," aside from choosing his lawyers.
• In its rebuttal, the prosecution argued that Blagojevich's "ignorance" defense doesn't work, especially for someone who's a trained lawyer and a governor. The prosecution said there are mountains of clear evidence that Blagojevich knew what he was doing, and surrounded himself with yes-men who wouldn't get in the way.
• U.S. Attorney Patrick Fitzgerald and F.B.I. Special Agent in Charge Robert Grant were in the overflow room listening to the closing arguments on Tuesday.
• Sam Adam, Jr.  and Judge James Zagel had a disagreement Monday when Adam, Jr. told the judge that he planned to criticize prosecutors for not calling witnesses Tony Rezko and Stuart Levinein in his closing. The judge said he would not allow it, and the defense could have called those witnesses. He deliberated on a motion to reconsider Tuesday morning at a hearing with attorneys from both sides, in which he warned Sam Adam, Jr. he would intervene if he felt the jury may be mislead.
• Closing arguments for Robert Blagojevich and the prosecution wrapped up Monday.
• In a shocker Monday, Blagojevich brought his young daughters, Amy, 14, and Annie, 7, to court. They sat right behind him and listened to allegations during prosecutors' closing arguments. It was the first time the girls were in the courtroom since the trial began. Jury consultant Alan Tuerkheimer told us the move could make Blagojevich look like a family man, or it could backfire, but most likely, it won't make any difference.

Prosecution's Rebuttal Closing Arguments

Assistant U.S. Attorney Reid Schar gave the prosecution’s rebuttal closing argument, telling the jury what they heard from the defense amounted to “I didn’t do it, didn’t mean to do it, I didn’t know I did it,” and that Blagojevich was taken down for political reasons.

Schar called these reasons ridiculous.

He told the jury to put the evidence, the pieces of the puzzle together. The defense said there were misunderstandings..

Schar said Blagojevich is smart, he wouldn’t get elected twice otherwise. He knows 30 second sound bytes, knows how to communicate and he's good at it, and the jury can see it over and over in the case, Schar said.

Blagojevich told Balanoff how he'd like to be health and human services secretary, Schar said. On Nov. 12, he said, the jury heard a phone call in which Blagojevich asked for millions of dollars for a nonprofit and then they could help appoint Jarrett.

Schar mentioned other calls in which Blagojevich said "She can be a senator; I want this 501c3."

Schar told the jury about phone calls with Blagojevich and Scofield in which Blagojevich said it would be "unsaid" what would happen if he appointed who the Obama administration wanted. He also told the jury about a call in which Blagojevich told Scofield to tell Wyma "this isn’t one for the other.” Schar told the jury Blagojevich said it because it was too blatant to do it any other way.

Schar said Blagojevich was practiced at this and knew what he was doing.

The prosecution is talking with the jury about Krozel and the tollway projects. The prosecutor said that the jury doesn't have to guess if Blagojevich tried to shake Krozel down, because Blagojevich made it "patently" clear by saying, "F*** em if they don't perform." The prosecutor also said Blagojevich made it "patently" clear to three other people that he expected the construction industry to fundraise for him, especially at a meeting at FOB offices that Krozel attended.

Schar said "the ask" is the crime-- that when Krozel was asked to fundraise $500,000, it was extortion.

The prosecution pointed out that Blagojevich did approve the $1.8 billion tollway project, but not the bigger one.

Schar reminded the jury that Krozel said he lied when he told the FBI on December 9, 2008, that he didn't feel pressured. (The defense objected to this, but the judge overruled them.)

The prosecutor said there are more victims that just the ones the jury heard from, and segued into the alleged Children's Memorial Hospital shakedown. He talked about how Blagojevich told Wyma: "I'm doing $8 million for Children's... I want to get Magoon for $50,000." The prosecution also reminded the jury about how the "healthcare" governor told Magoon not to talk about the rate increase until it happened on January 1, 2009.

Schar said, "Who better than Bob Greenlee to understand what Blagojevich wanted done on the rate increase? It was his job to know. Imagine the consequences if he got it wrong. When Blagojevich asked Greenlee if they can pull back on the rate increase 'for budget reasons,' why didn't Blagojevich ask how to save the program? Why is he also working on giving state money to the Cubs at the same time? His number one priority was supposed to be healthcare."

Schar then talked about the consequences for people who didn't fundraise for Blagojevich, and mentioned the call on which Blagojevich talked about Cheryle Jackson bouncing a $750 campaign donation check.

Schar then talked about the shakedown of race track executive John Johnston. He talked about the "pressure point of view" phone call between Blagojevich and Monk on which they decided it would be better for Blagojevich to talk to Johnston about making a campaign donation before the end of the year, and before Blagojevich signed the race track bill.

Schar said that when a bill shows up on a governor's desk, the governor should be making his decision to sign based on one thing: the merits of the bill, "whether it's good for the people of Illinois."

Prosecution said it was obvious this bill was "one for the other" (quid pro quo)... that Magoon got it, Krozel got it and Johnston got it. Schar said that even Monk got it, so (sarcastically) somehow Blagojevich, the master communicator, didn't get it.

The prosecution segued into the Senate seat, and said it's perfectly clear in this case that we are talking about x for y. Schar said Blagojevich's crimes are ones that involve a lot of talking, scheming and conspiracy.

The prosecution told jurors they shouldn't consider these crimes as "just talk." Schar said the jury should take a step back and look at who Blagojevich is: a former state prosecutor with the Cook County State's Attorneys office, a man who took a state ethics exam and passed.

Quinlan told Blagojevich not to even joke about taking money for a 501c3, and Schar said that Blagojevich knew he couldn't do that. But then the defense delivers this "blaming everyone else argument," and in their storyline, given all his training and education, Blagojevich somehow becomes the "accidentally corrupt governor."

The prosecution said that common sense tells you that people who say they didn't know what they were doing really did know, and that Blagojevich knew the proper criteria for a Senate seat appointment and ignored it.

The prosecution said Harris was special counsel to Blagojevich on one issue not related to the trial, and asked how Blagojevich could talk about getting rid of the people who were investigating him and not realize it was wrong.

Schar said that Blagojevich surrounded himself with people who agreed with him, and he pointed out that there's not one tape on which Blagojevich ever told an advisor: "You have a good point, I think I should reconsider mine."

"It's no mistake that we played the number of tapes we did," Schar said. In the calls, you can hear that it's "everyone's fault but the defendent. But it's not their job to stop Blagojevich from breaking the law."

Schar also said the government doesn't have to prove that Blagojevich knew he was breaking the law, and that "it's not a good thing" that the defense is trying to argue that Blagojevich was ignorant.

Schar then started to go over the timeline of the Jesse Jackson Jr. subplot. He said that on October 31, Blagojevich found out the Indian community was willing to donate millions to him, if he appointed Jackson Jr. to the seat. Then on November 12, Blagojevich realized he was striking out with Valeri Jarrett, and he mentioned that third party people are offering him money for the seat. The prosecution said it's clear that Blagojevich believes the cash offer is more substantial than the Obama administration's offer.

Then, in a December 4 phone call, Blagojevich mentions tangible support and specific amounts up front.

Schar then talked about a phone call on which Blagojevich talks with Rob about "tangible political support" from Nayak up front, and that Rob should assume "the whole world is listening."

The prosecution said that Robert wants to have it both ways: on the stand, he said he didn't think he was mixing fundraising with Nayak, but Schar said that Robert did realize what was going on.

"There's an excuse for everything," said Schar. "Sometimes Rob Blagojevich did mix the two, sometimes things bleed over and that's the real world, but he told himself it was okay to be courteous to a guy he liked."

Schar said there's no doubt that Blagojevich dragged his brother into this, and that Robert could have said no, but made his own decision.

"Whether you are part of the starting line up or come in later in the game, you are still part of the team," Schar said. "Robert Blagojevich was critical in helping Blagojevich sell the Senate seat because he agreed to make the call to Nayak."

Schar then talked about the phone call on which Blagojevich told Robert to cancel the Nayak meeting because it was too obvious; if that meeting was just about politics, they wouldn't need to cancel it.

"These calls are part of the puzzle," said Schar. "They give huge insight into how Blagojevich operated."

Schar then moved on to Patti Blagojevich, and said: "You've heard the evidence. What you know now is that Patti did very, very little at Rezmar for her commissions and there are two examples that show it."

Schar also said that Blagojevich doesn't get "special credit" for paying his taxes, since he's not charged with tax fraud.

"Why does the defense attorney say Rezko is corrupt, but when Patti does work for him, it's legitimate?" Schar said. "It makes no sense."

Schar said Brian Hynes was instrumental in Patti getting the $40,000 commission in the Lake Aberdeen deal.

"How do you know if Patti's $40,000 commission check is a scam?" Schar asked. "You don't, unless you subpoena records and track down people. Then you really know what's going on."

Schar reminded the jury that Monk testified he didn't tell Blagojevich about the payments from Rezko because Monk didn't want to compromise Blagojevich.

"Blagojevich thinks this case is a conspiracy where everyone is lying and wants to take him down," said Schar. "That's one of the greatest conspiracy theories of all time. The defense believes not only are all the witnesses lying, but they got Blagojevich to frame himself on tape and got Blagojevich to have a motive. The motive was that he was and is financially strapped."

Schar also said the defense believes the FBI was part of the conspiracy to take down Blagojevich. But Schar asks, "Why would the FBI wiretap the phones of an innocent man they are supposedly trying to frame?"

"The tapes are not lying," said Schar. "It's not a conspiracy. The case is exactly what it appears to be: extortion and bribery by a corrupt governor. Everyone was supposed to step in and stop him. But Blagojevich is forgetting one of the first lessons we teach our kids: that everyone is responsible for themselves. Accoutability."

The prosecution said the jury needs to hold Blagojevich and his brother accountable and find them guilty on all counts.

Rod Blagojevich Defense's Closing Arguments

Rod Blagojevich defense attorney Sam Adam, Jr. began his team’s closing arguments. He said it had been two long months and he was going to tell the jury how the prosecution didn’t prove its case.

Adam, Jr. said there was a big pink elephant in the room.

“I'm going to talk to you like regular people. I know I promised each and every one of you that Blagojevich would take the stand. I didn’t lie; I had no idea that in two months of trial they would prove nothing. Who could possibly know in two months they would prove up Patti worked for the money and had a contract and that Blagojevich didn’t take a single dime, like I told you?” Adam, Jr. said.

He said in his openings he said Lon Monk was taking cash from Tony Rezko and that he thought it was an advance payment for him working for Rezko later.

“Blame me for Blagojevich not taking the stand,” Adam, Jr. said.

Adam, Jr. said Bob Greenlee looked like Buddy Holly on the stand because of his big thick glasses, and said he had the gall to tell the jury "ridiculousness,” the most ridiculous statement Adam, Jr. ever heard in court. Adam, Jr. said Greenlee testified, “Yes I told those things to Blagojevich. I was trying to disagree by agreement.”

Adam, Jr. said Greenlee tried to "BS" everyone there.

Adam, Jr. said he had never been in a case this long – two months -- and nobody went to sleep.

He told the jury they know what they heard, and they know Blagojevich is not corrupt. Blagojevich had professional jealousy for Obama, he said, but he “ain’t corrupt” and the prosecution didn’t prove it in their case.

Adam, Jr. commended a “beautiful” closing presentation by the prosecution.

Adam, Jr. said the prosecution gave the jury a separate set of facts regarding Blagojevich trying to leverage Jackson, Jr. for Senate. He said, like he said in opening statements, Blagojevich was using Jackson, Jr. as leverage to get who he wanted in the Senate, Lisa Madigan, to help him get his agenda past Speaker Mike Madigan in Springfield. Adam, Jr. said if Blagojevich was really talking to Jackson, Jr. about an appointment, he would have told everyone because Jackson, Jr. has a big mouth.

In openings, Adam, Jr. said Blagojevich wanted others to think he was going to appoint Jackson, Jr. to get someone to help him get Lisa Madigan appointed. In doing so, Adam, Jr. said, Blagojevich was trying to get 300,000 people health care, among other things.

Following two objections by the prosecution, Adam, Jr. told the jury he didn’t want to offend anyone, saying he'd been chastised and held down when trying this case. He told the jury not to hold that against his client, and the judge told him not to refer to himself in closing arguments.

Adam, Jr. then asked the jury how the prosecution proved Blagojevich was selling the Senate seat to Jackson, Jr. and not Lisa Madigan. Adam, Jr. said the calls are clear; the prosecution only gave the jury half the facts and they have to ask themselves why.

Adam, Jr. said it was because Blagojevich didn’t initiate communication with the White House. He said Obama sent an emissary to Blagojevich, including Balanoff and Emanuel, to let Blagojevich know Obama wanted Jarrett appointed.

Adam, Jr. went on to tell the jury he was going to talk them like they are regular folk, like they are at the grown-up table.

Adam, Jr. then played part of a taped phone call.

Adam, Jr. said “give me a break'” regarding claims Blagojevich tried to get Fitzgerald to stop the investigation into him.

Adam, Jr. discussed meetings Blagojevich had with Tom Balanoff about President Obama wanting Valerie Jarrett appointed to Senate, saying the Obama administration was "feeling out" Blagojevich.

Balanoff said he got concerned when Blagojevich mentioned getting the health and human services cabinet position for the appointment and he called Alexi Giannoulias and asked to meet with him and Jarrett, Adam, Jr. said. They met at the Obama transition office. The Obama administration negotiated through Rahm Emanuel as well, and Blagojevich thought it was a political deal between two people.

Adam, Jr. said the jury heard the tapes and can infer what was in Blagojevich’s mind about the president. He said it was just talk, that’s just how Blagojevich is.

Adam, Jr. whispered to the jury about how they heard testimony from Gerald Krozel and Monk, and they said something different to the FBI when they first spoke to them.

Adam, Jr. began telling a story to the jury about a couple walking a mule through town and problems with the mule. The prosecution objected, saying the story was totally inappropriate. The judge said closings were starting to look more like a show.

Adam, Jr. went back to whispering to the jury about how witnesses said they were terrified when "the feds came a knockin'." He said the FBI showed up at Krozel’s house at 6:30 a.m. on Dec. 9 to ask him about Blagojevich. Krozel said he didn’t feel pressured, but when he testified, Krozel said he was terrified and was trying to take care of his sick wife when the feds showed up.

Adam, Jr. said it was not bribery or extortion of the road construction industry when Blagojevich approved the $1.8 billion Tollway project. He said they got the money, and then he asked for $500,000 to be fundraised for him by the industry.

Adam, Jr. asked, if Krozel had business with Blagojevich and Blagojevich was asking Krozel for a contribution, what’s the problem?

The prosecution said Adam, Jr. needed to read the whole jury instruction to the jury defining bribery. Adam, Jr. read it and said an official can ask for a donation if he had business with him, but it can’t be specifically in exchange for it.

Adam, Jr. bellowed again to the jury it wasn’t an exchange; Blagojevich promised the $1.8 billion project and then asked for fundraising.

 Adam, Jr. brought up Krozel saying he felt pressured from a Friends of Blagojevich meeting about fundraising. Adam, Jr. bellowed, “Who are we kidding? That’s not extortion.”

Adam, Jr. said Children’s Memorial Hospital CEO Patrick Magoon talked to Blagojevich on Sept. 23 and said he'd look into fundraising for him. Adam, Jr. said it’s not extortion to have Rob Blagojevich call Magoon for a fundraiser after Blagojevich said a rate increase for doctors at the hospital was approved.

Up to this point, the prosecution objected approximately 10 times to Adam, Jr.’s closings. Each time the judge sustained. The judge also reminded the jury that they will decide the facts of the case and apply the law to those facts.

Adam, Jr. told the jury they will decide the facts and if Blagojevich was trying to bribe or extort Magoon.

Adam, Jr. discussed a phone call where Blagojevich asked Greenlee if they could pull funding back for budgetary reasons, and Blagojevich only asked Magoon to not mention the rate increase until Jan. 1 so others wouldn’t ask for increases before then.

Adam, Jr. asked the jury, what evidence was shown that the rate increase was held up? Adam, Jr. said Greenlee testified he understood Blagojevich to be telling him to hold back on it, but it didn’t get held up and the evidence there is the best it can be. The rate increase was supposed to be effective Jan. 2009. The prosecution said Magoon misstated this Adam, Jr. referred to the testimony transcript and said he would come back to the issue.

Adam, Jr. turned to Monk and what he told the jury about Monk in his opening statements. Whispering again, Adam Jr. told the jury that Monk and John Filan were the ones who worked on the state board deals, and Blagojevich never knew Monk was taking cash. Monk got corrupted, and that’s how we got here now, Adam, Jr. said.

Adam, Jr. told the jury that Blagojevich has "absolute horrible judgment on people,” and that’s what this case is about.

Regarding Chicago Academy High School, he said Blagojevich did the right thing, he approved a $2 million state grant for the school.

The prosecution objected to statement on this and the judge sustained. Adam, Jr. kept telling the jury, “you're entitled to your opinion; you're not entitled to the facts.”

Adam, Jr. said Blagojevich didn’t know Emanuel wasn’t giving him money, so he wasn’t shaking down the congressman.

Adam, Jr. whispered again to jury, saying Blagojevich was caught in a shakedown by Bradley Tusk and didn’t know it because if Blagojevich had, he would have cussed out Tusk. “You heard the tapes, give me a break,” Adam, Jr. said.

On how Blagojevich reportedly hid in the bathroom, he said, “Give me a break. These are the feds and this is what they bring you?”

Adam, Jr. said Blagojevich never got a dime from his fundraisers and now the prosecution wanted to tell the jury Blagojevich is a liar. (In count 24, Blagojevich is charged with lying to the FBI.)

Adam, Jr. said the FBI talked to Blagojevich based on Joe Cari’s statement that Blagojevich said he could connect state contracts and fundraising. Speaking very loudly, Adam, Jr. reminded the jury the FBI said they didn’t mention Cari’s statement to Blagojevich because it was part of ongoing investigation.

Adam, Jr. said Blagojevich did keep a firewall between fundraising and politics, pointing out how Tony Freveletti complained about not getting state contracts despite his fundraising for Blagojevich.

Adam, Jr. moved to discuss FBI Agent Patrick Murphy testifying to things not in his written report from his interview of Blagojevich.

At that point in the closings, the judge sent the jury on lunch break, but stayed to speak with attorneys for both sides. He said that Adam, Jr. was making some mistakes on the details of the case in his closings, such as regarding when the hospital rate increase went into effect and who the state ethics officer was, and he needed to stop. Zagel said objections to closings disrupt the flow, and precision is particularly important.

Court resumed after lunch and Adam, Jr. told the jury to follow the money -- not the way the prosecution said to, Adam, Jr. said, but follow it all the way.

Adam, Jr. told the jury the prosecution only showed that Joseph Aramand paid back Kjellander with interest.

Adam, Jr. talked about IRS Agent Shari Shindler testifying twice and the prosecution spending 52 minutes going over Blagojevich’s Visa bills, only to prove that Blagojevich used American Express and paid more in federal taxes than anything else. Sometimes the Blagojevichs overpaid on their taxes, according to their tax returns. He said Blagojevich spent $400,000 on suits in six years because he was a politician, the CEO of Illinois, he was in the media and papers every day and had to look the part.

Adam, Jr. said people get elected for 30 second sound bytes, and Sarah Palin probably spent $150,000 on her wardrobe and now gets $150,000 a speech.

If Blagojevich was corrupt, Adam, Jr. said, he would have paid his tailor in cash. At the same time he was paying $400,000 for suits, Adam, Jr. said raising his voice, Blagojevich was broke; if Blagojevich was corrupt, he could have told Kelly to pay the bill for him.

Regarding not signing the race track bill, Adam, Jr. said Blagojevich was holding off for timing reasons so Johnston wouldn’t think it fundraising was one for the other.

Regarding a job with SEIU’s Change to Win campaign, Adam, Jr. said the job was Harris' idea and not once did any of his advisors tell Blagojevich not to pursue the idea.

At one time, Harris did act as an attorney for Blagojevich, Adam, Jr. said. He played a tape in which he said Harris said Blagojevich asking SEIU the job was a negotiation.

Adam, Jr. talked about how Tribune wanted Blagojevich impeached for trying to get things done in Springfield.. Adam, Jr.’s response: “C'mon!” He said Blagojevich wanted to do all the things the editorial board said he should be impeached for.

Adam, Jr. said Blagojevich just wanted to help the Cubs, and at same time was having difficulties with Tribune editorial board; Blagojevich wasn’t extorting the Tribune.

Regarding Blagojevich’s discussion of Senate candidates and how Oprah was mentioned, Adam, Jr. said no one was going to say that's “the sharpest knife in the drawer.”

Whispering to the jury, Adam, Jr. said the prosecution proved Patti worked for the money she got from Rezko.

Adam, Jr. argued that Blagojevich didn’t know about the $40,000 Patti made from a River Realty deal involving Rezmar and another realtor named Brian Hynes.

“Kickbacks for work are called a job, and that’s what Patti did," Adam, Jr. said.

Adam, Jr. said it was getting late and something needed to be said about Blagojevich, Rezko and Monk selling state contracts for money for Blagojevich to use later. He essentially told the jury they shouldn’t believe Monk given he could barely remember one of the eight possible schemes the prosecution said they had, and the one he could remember didn’t match up with the timeline.

Monk took cash, committed crimes and lied to the FBI, Adam, Jr. said, asking how Monk got less prison time in his plea deal than Harris. Judge Zagel told the jury to disregard that statement because it was an inappropriate argument and told Adam, Jr. to not pursue it.

Adam, Jr. began to wrap up by saying there may have been some things he forgot, so when the jury is deliberating, they should ask themselves, what would Sam say?

Adam, Jr. said two months ago during opening statements he said to find Blagojevich not guilty. He said Blagojevich never intended on to do any of the serious things he was alleged.

Adam, Jr. ended by playing a tape in which Greenlee told Blagojevich: people want to take you down for political reasons.

Adam, Jr. added, “I won’t have another chance to talk to you. [Reid] Schar will have the last word. I sincerely thank you for these last two months.”

 

Judge Zagel's Hearing on Adam, Jr.'s Closing

Before court got underway, Judge Zagel met with attorneys from both sides about Blagojevich’s defense attorney’s closing arguments. Zagel said he watched the news and checked Monday’s transcript and clarified he didn’t threaten Adam, Jr. with jail when he said he'd be found in contempt of court. Adam, Jr. said Monday he was willing to go to jail for his client, but Zagel only mentioned contempt of court.

• Read the motion from the defense (PDF) and from the prosecution (PDF) regarding missing witness instructions.

Zagel asked Adam, Jr. if he still planned on doing the closings and if so, to give an example of how he planned to do so.

Adam, Jr. gave an example of how he'd like to point out how Patti did work on a certain real estate deal but Brian Hynes, another real estate agent in the deal, wasn’t called to testify by the prosecution. The defense wanted to say prosecution didn’t call Hynes as a witness because his testimony wouldn't have helped the prosecution and that Hynes would say Patti did work on that real estate deal. Zagel asked Adam, Jr. to give another example; Adam, Jr. gave one regarding Tony Rezko and Robert Kjellander.

The prosecution argued in front of Zagel that this type of argument is irrelevant to the type of findings tasked to the jury.

Zagel said his main problem with that type of argument was that it came "inexcusably late in the day" and how he talked about this during jury instructions last Friday.

Zagel said he believes the defense didn’t address the issue last Friday because they would rather have an adverse ruling by the judge than call a witness.

Zagel said it was too late to raise the issue during closing arguments.

Previously, Zagel told defense attorneys they have the same power as the prosecution regarding witnesses. He said when attorneys subpoena a witness and the witness refuses to testify, that can be addressed. Zagel said none of that aid was asked for by the defense.

Zagel said a reason why an attorney may not call a witness is if they call the witness, the attorney is vouching for them, and you can’t stop what happens to them on cross exam.

Zagel said he thought the defense didn’t want these witnesses at trial and blamed the government for the witnesses not appearing.

Zagel said he said on Friday he wouldn’t give a "missing witness" instruction.

Zagel denied a motion for reconsideration.

As Aaron Goldstein started to object, Zagel said he was done. ”I've noticed you continue to argue after I’ve already made a ruling,” he said.

Zagel said the prosecution was asking for a different missing witness instruction, saying you can’t ask the jury to conclude that the testimony of a witness that wasn’t called would have been unfavorable to the prosecution. They wanted Zagel to instruct the reverse of the missing witness instruction.

Zagel says this is an instruction that is only given if the defense "opens the door" to the issue.
The government filed a motion asking for this type of jury instruction.

Zagel said if Blagojevich defense attorneys don’t follow his instruction, he needs to figure out how to repair any damage that does to the jury.

Goldstein said Zagel shouldn’t rule on whether or not to give the jury instruction until the defense gives its closings and that he should hear more discussions after closings are done.

The prosecution argued that the instruction should be given to the jury during defense closings.

Zagel said if his ruling to not use missing witness testimony was repeatedly violated, he would "sit Mr. Adam down,” but that’s the last thing he wanted to do in closing arguments. He said he'd do it if he believes it reaches a point where he can no longer repair damage to the jury. Zagel said he was concerned the ruling may have the jury wind up giving credence to something they shouldn’t.

Zagel said he would give the instruction the first time he hears it in closings. He said he would give a proposed written instruction to attorneys for both sides so they could look at it.

Zagel said the only remaining issue was the government response to whether the defense could have called a witness. He said it was a dangerous thing to do because the defense was not required to call witnesses nor have the defendant himself testify, although it has been done.

Zagel said it was important that both sides look at this instruction before he gives it.

Zagel discussed the American Bar Association’s standards for criminal justice functions regarding closing arguments in front of the jury. The defense counsel may not mislead the jury in the inferences it may draw.

Zagel said he believed there was serious risk that the defense may mislead the jury as to what was evidence in its closings. He said it was of concern to him and he wanted it on record.

 

Closing Arguments Continue in Blago Trial | Originally Reported by MyFoxChicago.com