Aug
03

Blagojevich: Trial, Personality and Justice

I am not sure what the sputtering was all about on the eve of the closing arguments in the Rod Blagojevich trial. United States District Judge James Zagel issued a standard ruling prohibiting the defense from arguing that the government's failure to call certain witnesses damned the government's case against the former Illinois mayor. Sam Adam Jr. the lawyer, not a lite version of the popular beer, fussed and fumed: I'll go to jail in a heartbeat, he said, rather than obey a ruling such as this.

It was the second time that week that I wondered whether the 38-year-old Chicago lawyer knew what he was doing. 


Friends in Chicago tell me the young lawyer is well regarded, a passionate advocate with great jury appeal. He is to be forgiven showing signs of some stress fractures in this high profile case. But the law regarding adverse inferences for missing witnesses isn't exactly new. Lawyers are generally prohibited from arguing about what witnesses the other side did not call might have said had they testified when those witnesses are equally available to both sides.


This rule makes more sense in civil cases. The plaintiff in such a case can call a defendant as a witness. Both sides typically put on evidence in civil cases. The rule against gratuitously asking for adverse inferences when a party does not call a witness is justified in civil proceedings where the witness can be called with ease and without legal consequence by either side.


But in a criminal case, the government and the government alone has the burden of proof. A defendant need not call a witness and need not himself testify. Great fuss is made in jury instructions about the government having the burden of proof. It seems to me the law is wrong to prohibit the defense from arguing an adverse inference when the government refuses to call a witness. Suggesting that the defense could just as well have called the witness in question involves a subtle shifting of something very much like the burden of proof. Such rules of law are what persuade criminal defense lawyers that many judges are an adjunct to the prosecution.


Surely Mr. Adam knew this long before United States District Judge James Zagel issued his ruling. It should have come as no surprise.


But it appeared to, and the result was unedifying. Mr. Adam blustered about going to jail. The judge had to remind the lawyer he'd do his client no good behind bars. So Adam gave a closing argument in which he rambled, later telling people he'd argued only 70 percent of what he had planned. 


It was almost as awkward as Mr. Adam's promising the jury they'd hear from Blagojevich during trial, and then deciding not to call the witness at all. Sure, I understand that the decision to testify is the client's and the client's alone. But it is a risky gambit to promise something and then not deliver it. I know, I know: simply claim that the government did not prove its case; plans changed. That's one way to explain this change of course. Another, of course, is to wonder whether the defense lost its focus as the trial blossomed. It looks that way from afar.


I've watched the Blagojevich trial with an uneasy sense that trial really isn't a young man's game. Mr. Adam has a reputation to make. This is his moment in the Sun, and he wants to bask in it all he can. Win or lose, reputations are made in cases such as this. Mr. Adam will always be the guy who ate ice for lunch during the trial of the former governor and lost all that weight. But for my money, Mr. Adam made the mistake every trial lawyer makes at various points in his career: the trial became too much about him.


Announcing that he'd rather go to jail than follow the court's ruling was a rookie's bluster. Mr. Adam should well have known that this ruling was likely, and he should have prepared his argument on the missing witnesses in such a way that it could be delivered without permission by the judge. Trial lawyers learn year after year where the hidden lines are drawn in a courtroom. We are paid to tiptoe quietly up to those lines by means often subtle. Mr. Adam drove a diesel tractor trailer into a church and then complained that he was making too much noise. He'll outgrow those theatrics. All of us do.


I'm reminded of a professor's remark: You will find teenage math prodigies, but not teenage prodigies in philosophy, or other arts requiring judgment or experience.  Thirty-eight is young; the owl of Minerva is not easily found.


In the end, the pursuit of justice is not about the personalities of the lawyers, although there is a school of trial advocacy that teaches otherwise. Personality is what celebrities have. Mr. Adam needs to decide whether to be a celebrity or a trial lawyer.


Mind you, I am not claiming to be any better than he. I've acted up in courtrooms far too many times. But I've learned that just because something feels good, it is not necessarily right. My experience blogging about the law reinforces that. Just the other day, I was called out by another blogger I respect, Mark Bennett,  for a "passive aggressive" style: I write about issues without naming those who espouse various positions.I should, apparently, spread link-love and name those with whom I disagree. Perhaps that would be better marketing.


But I don't want law blogging to become the equivalent of Sam Adams Jr.'s tantrum: Issues matter to me; personalities don't. There's a nasty trend among bloggers to engage in ad hominem tripe: John Kindley of People v. State just got mobbed. He wrote a contrarian's piece about justice and criminal law. What followed were comments about his profile on his webpage, etc. This is tedious grammar school antics. Sure, it's fun to huff and puff and finger point at one another. But to what end?  Writers, like trial lawyers, are mere vehicles for the messages they convey: personalities rarely matter. If someone writes something I think ill founded, it is far less aggressive, whether passive or not, simply to disagree, than it is to advertise his or her error more effectively.


Sam Adam Jr. looks like he's got the makings of a great lawyer. I hope he and his client dodge the bullet in this case, although I have my doubts. But win or lose, I hope Mr. Adam decides that living large isn't the same thing as effective representation of a defendant in need of an advocate first, and a showman second.
Comments (2)
Posted on August 3, 2010 at 7:43 pm by Lee Stonum
It is certainly an argument that is available to u...
It is certainly an argument that is available to us in California state courts. I was taken aback when I heard this and chalked it up to one more ridiculous prosecution favored rule of Federal crimpro.

Posted on August 3, 2010 at 10:21 am by Ray Sipsa
I am not a criminal defense lawyer, but curiosity ...
I am not a criminal defense lawyer, but curiosity got the best of me. And so I did a little research on Illinois law and the criminal defendant's ability to comment upon the failure of the prosecution to call certain witnesses.

I came across the Illinois Supreme Court case of People v. Scott, 38 Ill.2d 302 (1967).

In Scott the Supreme Court stated: The State did not offer any witness to present ballistic evidence at the trial, but this did not give rise to a presumption, as is suggested by the defendant, that the testimony of such witness would be unfavorable to the prosecution. (See People v. Jones, 30 Ill.2d 186, 195 N.E.2d 698.) An accused, of course, has the right to comment on the unexplained absence of a witness, but as we said in **444 People v. McElroy, 30 Ill.2d 286, at 290, 196 N.E.2d 651, at 653, ‘it is fundamental that the People may accept the risk of negative inferences from the unexplained absence of a witness so long as the offense is otherwise proved.

Maybe federal law is different, but I think the argument that the defense could have called these witnesses is constitutionally improper. And it looks like in the Illinois courts art least, the defendant can make the comments that Sam, Jr. wanted to make.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
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