Mr. Blagojevich had angrily described the federal prosecutor as a “liar” late Tuesday, challenging him through local television cameras to “be man enough to be in court” the next day.
Mr. Fitzgerald did not show. But US District Judge James Zagel told Blagojevich and his lawyers that he was unhappy with the combative nature of the defense. His courtroom would not “permit the legal equivalent of head butts,” he said.
“Those rules are enforced by the referee, not by the boxers. I am that referee – no one else," Judge Zagel said.
Blagojevich faces several counts of racketeering, extortion, and bribery in an alleged attempt to sell Barack Obama’s vacant US Senate seat. The hearing Wednesday dealt with the scope of recorded conversations that might be admitted as evidence for the trial.
Zagel criticized the former governor for repeated remarks in the media about prosecutors suppressing wiretaps that Blagojevich says, if aired, would reveal a “smoking gun” pointing at his innocence.
For his part, Blagojevich on Tuesday called the US Attorney’s Office “cowards” for not addressing his demand to have the recorded conversations aired in their entirety. “The reason they won’t play all those tapes is that they are covering up that big lie,” he added.
Zagel made it clear that it wasn’t up to the prosecution team regarding what would be allowed in the trial. Rather, the admittance of all evidence is under Zagel’s domain. “The only person who can admit evidence is me,” he said.
He gave Blagojevich’s legal team until May 14 to provide a list of all the tapes it wants played at the trial. But he warned that he would monitor whether the requested tapes were relevant to the case so that jurors aren’t "needlessly consumed” by evidence that has no bearing on the trial.
Which is exactly what Blagojevich wants to happen, says Ron Safer, a former assistant US attorney. Sam Adam, a Blagojevich lawyer, told reporters following the hearing that he could ask the judge to play at least 200 of the 500 hours of tape, but he wasn’t sure yet of the exact number.
So many hours of tape would prolong the trial for months and enable the defense to shift focus from the few hours of recorded conversation the prosecution will use to make its case, Mr. Safer says.
“What [Blagojevich would] like to do is have the jury go to sleep, be numbed, be distracted by the remainder of the tapes,” he says. “The judge will not let that happen.”
In a 91-page proffer released last week, the prosecution singled out specific conversations that it says show Blagojevich was involved in multiple extortion schemes to raise money for his campaign coffers and to get Patti Blagojevich, his wife, on ghost payrolls involving real estate companies.
The impeached governor called those tactics “hitting below the belt.” His wife, he said on Tuesday, “is a licensed professional.” He added, “She is capable and competent, and all the money that she earned she worked for and she paid taxes on.”
Following the Wednesday hearing, he said he “was relieved” that his team will have a chance to request some tapes to be aired.
“Judge Zagel appears to be a very fair man, a very thoughtful man, and he's obviously well schooled in the law," Blagojevich said.
Since his arrest in December 2008, Blagojevich and his wife have become national celebrities with frequent appearances on reality and talk shows. They say they are using the media barrage to raise money for the upcoming trial, while trial-watchers say it is a ploy to sway potential jurors.
In either case, Fitzgerald’s team has continued its silence, refusing to directly answer Blagojevich in the media or the courtroom.
That low-style approach, Safer says, will help once opening arguments begin.
“They’re giving him rope, and in my view, he’s using it to hang himself further,” he says.