Posted on 12/14/2008 11:36:35 PM PST by STARWISE
Chicago U.S. Attorney Patrick Fitzgerald is an old hand at political corruption trials. The initial evidence he's brought against Illinois Gov. Rod Blagojevich appears to be overwhelming.
But defense lawyers know that wiretaps often can be a double-edged sword, and that there are weakness to be exploited in the 76-page criminal complaint against Blagojevich and his chief of staff, John Harris.
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"I don't want to sound like this is a wonderful case to defend because it's not," says Patrick Cotter (right), a white-collar defense partner at Chicago's Arnstein & Lehr.
(Cotter worked with Fitzgerald when the two were assistant U.S. attorneys in Manhattan.) "But already we see a couple tactics and possible arguments and theories that the defense might use to undermine some of the allegations."
With Blagojevich reportedly still looking to add to his legal team, The Am Law Daily reached out to several former prosecutors turned defense lawyers to see how they would proceed if tasked with defending the governor.
BRACING FOR INDICTMENT, PURSUING A PLEA
Fitzgerald has told reporters that investigators went the rather unusual route of beginning their case with a criminal complaint instead of an indictment because he was concerned about stopping imminent criminal activity.
"One of the advantages of the federal prosecutorial system is that you usually get to control the timeline when you bring the charges," says Cotter, who helped prosecute notorious New York mob boss John Gotti. "The mantra we were always taught is, 'You should be prepared to go to trial a week after you bring the charges.'"
Federal prosecutors consider the indictment the end of an investigation, says Cotter, not the beginning. Since Fitzgerald had to pull the trigger early, now he'll have to play catch up.
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Fitzgerald will have 20 days to bring an indictment against Blagojevich or grant him a preliminary hearing, says Clifford Chance litigator Wendy Wysong (left), a former assistant U.S. attorney in Chicago. Wysong was part of a team that prosecuted former Illinois Democratic congressman Daniel Rostenkowski on corruption charges in 1994.
"If there's a preliminary hearing, prosecutors only need to show probable cause, so it'll be a truncated hearing where they don't have to put on all of their witnesses, usually just the FBI agent who submitted the affidavit," she says. "But if there's a chance of a plea, defense counsel [for Blagojevich] are likely to seek an extension as they try and fashion what the charges will be."
A plea certainly isn't out of the question, says Barry Pollack, a defense attorney with Washington, D.C.'s Miller & Chevalier who represented former New York Republican congressman Vito Fossella on his drunk driving conviction in October.
"Often when you see a case proceed by criminal complaint as opposed to by indictment, it is done to allow some flexibility for those kinds of negotiations," he says. "The complaint itself is just a placeholder and prosecutors are likely deciding right now what they will charge, if they haven't done so already."
"The fact that they put out such a well-written complaint, affidavit, and press release shows that this is not a rush job," Wysong says.
One potential complicating factor for a Blagojevich plea: The role of his wife, Patricia, in the investigation.
Many of her real estate deals came under suspicion during the trial of Chicago political fundraiser Antoin "Tony" Rezko, convicted on fraud and money laundering charges in June.
ATTACK (AND EMBRACE) THE RECORDINGS
"Personally, I've always thought it hard to cross-examine a tape," Cotter says. "But the first thing you do with the tapes is challenge the warrants authorizing them to see if any mistakes were made."
Pollack says defense lawyers will devote hours to scrutinizing transcripts of the tapes looking for positive things Blagojevich said that could bolster his defense.
"The release of select portions from the tapes help people draw conclusions of guilt," Pollack says. "The big concern I would have is that by the time you get to trial, a jury may have already made up its mind and not want to hear the other side," he adds. "I'm convinced there is another side."
As Cotter sees it, the weakest charge in the matter is that Blagojevich sought to have members of the Chicago Tribune's editorial board fired in return for state financial assistance to the newspaper's parent company.
But the complaint says nothing about whether the FBI approached someone at the Tribune and asked them if John Harris or anyone else tried to extort them into firing people.
"So maybe this was all just talk," Cotter says. "Maybe this was just a bunch of guys blowing off steam, like Hitler in his bunker or Nixon in the White House."
While that's poor political company, if prosecutors can't produce someone from the Tribune to testify that they were extorted, Cotter says, then they don't have the overt act necessary to definitively say a crime took place. ~~~
Rest at link
More importantly, Cotter says the footnotes show that Rezko's memory of certain events differs from other potential cooperators like Chicago businessman Stuart Levine. Prosecutors never want to put contradicting witnesses on the stand, says Cotter, but defense attorneys sure do.
"I'd get Rezko to say fifteen times over that Levine's a liar and then when Levine gets on the stand, I'd have him say Rezko's a liar," Cotter says. "And then you can point to the jury and say, 'Look, their own witnesses can't even agree!'"
Letter in comments section of article:
~~~
Here are the facts linking Obama to Blagojevich, in a letter I sent to Patrick Fitzgerald.
Dear Mr. Fitzgerald:
Today you told the press, in connection with the Blagojevich arrest, “We were in the middle of a corruption crime spree and we wanted to stop it.” And yet most of the complaint is based on evidence you have had for a number of years. In other words, if the matter concerning the appointment of a Senator were removed, you would still have had enough evidence to indict Blagojevich. In fact, the complaint shows that you have enough evidence for a number of years.
This means that you and no one else, allowed Blagojevich to continue on a “crime spree” long after you had enough evidence to arrest him. Indeed, he would never have gotten to the point at which he was about to sell a Senate seat, if you had arrested him earlier. Why did you not do so? Why did you allow him to commit more crimes?
And now you are about to show the same negligence again. You are apparently about to make the same mistake with regard to Barack Obama. As you probably know, Evelyn Pringle has published detailed online articles concerning Obama’s participation in “Operation Board Games” crimes. Below, I reproduce paragraphs from your own Blagojevich complaint, and after them, a section from the Pringle Obama articles dealing with precisely the same facts as the complaint.
Her articles show in detail that Obama has committed the same 18 USC 1346 crimes you discuss in your Blagojevich complaint. And yet he has not yet been arrested. Why not?
Just as you allowed Blagojevich to get to the point where he was about to sell a United States Senate seat, so you allowed Obama to be elected President, and apparently you are willing to let him continue his own crime spree by actually becoming President.
It was irresponsible for you to continue to allow Blagojevich to continue in office when you had enough evidence to arrest him, and it is irresponsible of you now to allow Obama to continue in office and become President, when you have enough evidence to arrest him.
Arrest Obama now. It is irresponsible of you to wait any longer.
Sincerely yours,
John Ryskamp
~~PING!
Get this guy out of the Governor's Mansion, too.
Obama has exposed the true meaning of PC...yep Politically Corrupt.
That would be more than a dream come true to see B. Hussein arrested. However, don’t hold your breath.
People are holding their breath about Obama being arrested? Does anyone thing Blago is going to jail?
He is going to be found innocent, he will pick Obama’s selection to replace him, he will get his wife a nice cushy job, he will make millions from it, and the MSM will blame this all on a Republican witch hunt.
And life in Chicago will go on.
Thanks for the ping. This Evelyn Pringle(democrat) ‘investigation’ might be a must read now.
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