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updated: 7/26/2011 5:48 PM

Blagojevich claims judicial bias in bid for new trial

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  • Former Gov. Rod Blagojevich was convicted in June on multiple corruption charges. His attorneys claim he was deprived the "presumption of innocence."

    Former Gov. Rod Blagojevich was convicted in June on multiple corruption charges. His attorneys claim he was deprived the "presumption of innocence."
    Associated Press file photo

Associated Press

Former Gov. Rod Blagojevich alleges a litany of errors at his recent corruption retrial in seeking yet another trial, including that a prosecutor should not have been allowed to call him "a convicted liar" in front of jurors.

In a 158-page motion, his attorneys lambast the government and presiding Judge James Zagel for a lack of evenhandedness, which they say led a jury to convict Blagojevich on 17 of 20 charges against him.

"It is a case of overwhelming bias against the defense in which the playing field was so unlevel that Blagojevich never stood a chance at a fair trial," they said in the motion, filed late Monday. It adds, "There was a thumb on the scale of justice."

The motion points to one of the most memorable moments at the retrial, when lead prosecutor Reid Schar opened his forceful cross-examination by asking Blagojevich, "You are a convicted liar, correct?" The judge overruled a flurry of defense objections before Blagojevich answered quietly, "Yes."

In the first major post-trial defense motion, Blagojevich's attorneys argue that Zagel never should have permitted the question, which was a reference to Blagojevich's conviction at his first, largely deadlocked trial of making a false statement to the FBI. The question was designed "to prejudice the jury and improperly infer that Blagojevich must be lying about all of his substantive testimony," the motion says.

A spokesman for the U.S. attorney's office, Randall Samborn, declined any comment on the motion. The government could respond at a status hearing set for next week.

Jurors found Blagojevich, 54, guilty of counts including attempted extortion for trying to sell or trade President Barack Obama's vacated U.S. Senate seat for campaign donations or a high-paying job.

While the ousted governor chose to take the stand at his retrial, a signed affidavit tucked in at the end of this week's filing suggests he may now regret that decision.

He claims he only testified because his attorneys assured him he would be able to tell jurors he sincerely believed his actions had been legal. When he tried to make any such claims on the stand, Zagel stopped him.

"I only elected to waive my 5th Amendment right (to not have to testify) . . . because I believed I could give the aforementioned testimony," he says in the one-page affidavit.

The motion complains that Zagel gave Blagojevich little choice but to testify after repeatedly ruling that arguments the defense viewed as crucial could only be broached by the former governor himself from the witness stand.

"Yet, when Blagojevich finally took the stand, he was bamboozled by the court's rulings and assertions throughout the trial," it said.

Post-trial motions by defense attorneys are a common way to lay down arguments they can draw from when they appeal to a higher court. Such motions usually aren't as long as this, however, and the defense had to ask for permission to file so many pages.

The motion also stands out in how it repeatedly points an accusatory finger at the presiding judge -- in this case, Zagel. As an example of his alleged bias, it notes that he almost invariably sided with prosecutors when lawyers objected during testimony. No sentencing date for Blagojevich has been set. Most legal experts say Zagel is likely to sentence Blagojevich to around ten years in a low-security but highly regimented prison, where the twice-elected governor would have to take a menial job at a wage of less than a dollar an hour.