Rod Blagojevich on the witness stand: a high-risk legal strategy

Former Illinois Gov. Rod Blagojevich is expected to testify soon on his own behalf in his seven-week corruption trial. The strategy has its risks, but the defense may be hoping the tough-talking politician can win over jurors.

By , Staff writer

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    Former Illinois Gov. Rod Blagojevich shakes hands with a supporter, Art Hamill, Chicago fireman, upon his arrival at the Federal Court building, Tuesday, July 20, as his wife Patti, right, enters the building. Blagojevich is expected to finally step into the witness box at his corruption trial on Tuesday.
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Since the day he was arrested Dec. 9, 2008, and charged with 24 counts related, among other things, to conspiring to "sell" President Obama’s former Senate seat for campaign cash, impeached Illinois Gov. Rod Blagojevich has insisted on his day in court to tell jurors his side of the story.

If he does, perhaps as soon as Tuesday, Mr. Blagojevich will employ a defense strategy that legal experts call his "Hail Mary" pass. After seven weeks of testimony by the prosecution, the evidence against him is so troubling, many say, that he has nothing left to lose.

“The only time I would put a client on [the stand] is if I’m convinced the evidence is going to convict them,” says Richard Kling, a Chicago criminal defense lawyer.

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Blagojevich faces a high hurdle. In their case, federal prosecutors played hours of wiretaps in which the former governor let loose with foul-mouthed rants with former aides about trying to shake down a long list of people and institutions, from the head of a local children’s hospital to the Chicago Tribune, for campaign contributions.

But how he talks is not a crime. Blagojevich’s early days as an amateur street boxer certainly put the colorful tirades in context. His defense team may see his quirkiness as helpful in that it could counter the prosecution's argument that the former governor saw himself as above the law.

Blagojevich’s lawyers want to persuade the jury that their client “was all hot air” and that his talk on the tapes “was puffery and macho locker-room talk,” says Douglas Godfrey, a former criminal defense attorney who is now a law professor at Chicago-Kent College of Law.

If they can do that, says Mr. Godfrey, they may persuade jurors that he is just another character from a long line of Illinois politicians with bulldog personalities. The difficulty, he says, is showing that all that posturing caught on tape was typical political maneuvering, not for personal betterment.

“[The defense] can say Illinois politics is horse-trading politics. Nobody above the age of 12 should be surprised at that,” says Godfrey.

The danger, in the likely view of his defense team, is Blagojevich’s love of the spotlight.

Since his arrest, he fired his first legal team when they told him to stop talking to the media. In the 1-1/2 years since, there has hardly been a seat on a national talk show Blagojevich hasn’t warmed. His pursuit of the media means he is a published author, a weekly radio talk-show host, and, on some occasions, an Elvis Presley impersonator.

His natural charm and ease with the public will be an asset on the stand, but it also means he will have more opportunities to contradict himself and the testimony of supporting witnesses.

“He does not have a shut-up switch. He will go on and on, and that is to a skillful cross-examiner’s benefit,” says Godfrey.

Besides Blagojevich, the defense plans to call almost a dozen witnesses, including White House Chief of Staff Rahm Emanuel, top Obama aide Valerie Jarrett, and Patti Blagojevich, the governor’s wife.

The last choice leaves many legal experts scratching their heads. In the wiretaps, she comes off as akin to Lady Macbeth for trying to press her husband to use political power for her family’s personal benefit.

Her testimony would be “potentially devastating,” says Mr. Kling, in that it would give prosecutors an opportunity to delve into the real estate dealings of her husband and convicted Chicago real estate developer Antoin “Tony” Rezko. Mr. Rezko is accused of adding Ms. Blagojevich to a ghost payroll at the governor’s insistence.

Kling says it's “not clear who is running the Blagojevich show." It could be the former governor himself, and “that," he says, "could be dangerous.”

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