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posted: 5/25/2011 8:28 AM

Blagojevich attorneys to mount first defense

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Associated Press

CHICAGO -- Rod Blagojevich's attorneys will begin mounting their first defense of the former Illinois governor Wednesday in his retrial on corruption charges, and new Chicago Mayor Rahm Emanuel is expected to be one of the opening witnesses.

Emanuel and U.S. Rep. Jesse Jackson Jr. have been called to testify in the Blagojevich case, according to a person familiar with the defense plans who spoke on condition of anonymity because the person was not authorized to speak publicly. The two elected officials were expected to appear Wednesday at the Dirksen Federal Courthouse.

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In the first trial last year, Blagojevich's attorneys rested without calling a single witness. The jury later deadlocked on 23 of the 24 counts against the former governor, including allegations that he tried to sell or trade President Barack Obama's former U.S. Senate seat in exchange for campaign funds or a job for himself.

The sight of a sitting Chicago mayor on the witness stand in a federal corruption trial -- in addition to a congressman who is the son of a civil rights icon -- is sure to heighten the drama of a case that had been shaping up as an accelerated but less theatrical version of the first trial last summer.

The defense attorneys have suggested they would call the two elected officials to help them argue that Blagojevich's actions and conversations were merely part of the normal give-and-take of politics, and not crimes. Both have been under subpoena in the case since before Blagojevich's first trial last year.

In deciding whether to call Emanuel or other prominent figures to testify, Blagojevich's attorneys have treaded carefully because they know that such high-profile witnesses can backfire. Legal experts say the defense could alter their strategy at any time before presenting their case to jurors.

"All these witnesses can end up hurting you far more than they can help," said Phil Turner, a former federal prosecutor in Chicago. "They're land mines. You've got to be really, really careful."

Among the calculations Blagojevich's team has to make is whether the benefits of putting someone like Emanuel or Jackson on the stand outweigh the risks. Each of them would likely be asked about any contacts they had with Blagojevich or his assistants in relation to choosing a nominee for the Senate seat.

Emanuel was involved in communicating to Blagojevich's team the preference of the White House on potential nominees, and Blagojevich's attorneys say the governor eventually wanted Emanuel to help broker a legitimate deal to fill the seat. Jurors have heard testimony at the trial about a supporter of Jackson who allegedly offered millions of dollars in campaign contributions to Blagojevich if the governor named Jackson to the seat.

But, when it comes to anyone other than Blagojevich, the defense will have little control over witnesses' answers.

"It's Defense Lawyer 101: You don't put on witnesses unless you know exactly what they're going to say beforehand," said Gal Pissetzky, a Chicago-based defense attorney who frequently argues in federal court.

Turner agreed.

"You put (Emanuel or Jackson) on and you ask a question hoping for a certain answer, and they say something completely unexpected," he said. "That's a disaster. You're standing there in front of the jury with your pants down. "

The one comparatively predictable witness would be Blagojevich himself. Unlike the first trial, in which the former governor did not testify after vowing to do so for months, Blagojevich's attorneys have indicated he is likely to take the stand this time around.

If he's been prepared well by his attorneys and can maintain his cool under cross-examination, Turner argued that the twice-elected governor could be a formidable witness.

"He has the capability, anyway, of being very persuasive and not coming across as crazy if he puts his mind to it," Turner said.

But prosecutors, all of whom have devoted years to the case, would salivate at the prospect of being able to grill Blagojevich. They would be almost certain to ask him about his profanity-laced talk on FBI wiretap recordings about desperately wanting to make money, evidence that was at the heart of prosecutors' three-week presentation to jurors.

Blagojevich, 54, faces 20 charges at his retrial. Among the allegations is that he attempted to shake down Emanuel's Hollywood agent brother to raise political contributions for the governor. Blagojevich denies any wrongdoing.

His first trial ended in a hung jury, with jurors only able to agree on one charge, convicting Blagojevich of lying to the FBI.

Neither Emanuel nor Jackson has been accused of wrongdoing. But their names came up often in the first and second trials -- Emanuel's name in the alleged shakedown, and both men in testimony about the Senate seat.

Blagojevich's attorneys have pointed to Emanuel before as someone they say is adept at the art of political deals, and they may hope to imply to jurors that Blagojevich, too, was merely engaging in perfectly legal deal-making.

But Turner says prosecutors could score more points with Emanuel during cross-examination.

"Prosecutors could get up there and ask Emanuel, 'Would you ever extort someone, Mr. Emanuel?' 'Absolutely, not!' he'll say. 'Because it'd be totally wrong,'" Turner said. "That would be devastating testimony to the defense. They'll want to crawl under the desk and dig a tunnel outta there."

While Blagojevich's attorneys have signaled they are considering the possibility of putting Blagojevich on the stand more seriously, there's another reason why they could have second thoughts.

In federal court, if a defendant who testifies in his own defense is convicted, that testimony could be considered perjury -- a finding that could add months or years to his sentence, both Turner and Pissetzky explained.

If convicted on all counts, Blagojevich faces a maximum prison term of 350 years. Federal guidelines would dictate he'd get far less, though federal can consider multiple factors in sentencing.

Blagojevich already faces a five-year sentence for the lying conviction.

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