Attorneys for former Illinois Governor Rod Blagojevich asked a federal judge on Monday to bar prosecutors from playing any FBI wiretap recordings to jurors at his upcoming retrial, arguing that the evidence at the very heart of the government's case is unreliable.
Blagojevich's first trial occurred in August and ended with jurors deadlocked on 23 of 24 charges, forcing the second trial.
Monday's motion argues that Judge James Zagel should throw out the hundreds of recordings of Blagojevich — made in the days before his Dec. 9, 2008, arrest — because many contain gaps where vital context needed to understand the taped conversations may be missing.
The motion cites the best-known secret recording of Blagojevich in which he is heard saying about the seat: "I've got this thing and it's (bleepin') golden. ... I'm just not giving it up for (bleepin') nothing."
The motion clams three gaps totaling four minutes in that one call raise sufficient doubts, though the defense did not offer an alternative interpretation for what Blagojevich might have meant.
Federal agents secretly monitoring wiretapped phones are required to limit what they record to conversations pertinent to an investigation. That can lead them to frequently switch recording devices on and off, a process called "minimization."
Blagojevich's attorneys, however, argue that the "pattern of inconsistent and improper minimizations" in the hundreds of recordings in the investigation of the impeached governor justify tossing them all out as evidence.
The judge has prohibited attorneys from revealing details of recordings that were not admitted into evidence during the first trial in August, which ended with jurors deadlocked on 23 of 24 charges, forcing a second trial.
A message seeking comment left on a voicemail at the U.S. attorney's office in Chicago overnight was not immediately returned. Monday is a federal holiday and many government agencies are closed.
During the first trial, prosecutors played recordings of an often angry, foul-mouthed Blagojevich talking about how he might benefit from a Senate-seat appointment. The wiretaps were at the core of the government's case.
Monday's motion is the fourth filed by the defense in the last two weeks. All pretrial motions are supposed to filed before a status hearing Wednesday. Zagel could rule on motions at that hearing.
In one motion filed last week, defense attorneys asked Zagel to lift a court-ordered seal on all evidence, including the hundreds of hours of wiretap recordings, arguing that the 2-year-old order barring the public release of evidence impairs Blagojevich's lawyers more than prosecutors.
Monday's motion says while defense attorneys don't want jurors at the retrial to hear any of the recordings, they still want to be able to release them to the public.