In a clash of styles, judge favors reserve in Blagojevich trial
A clash in styles has the defense crying for a mistrial in the Blagojevich corruption case.
The lead defense attorneys for Rod Blagojevich, who tend to rely on a more rollicking, theatrical style refined in the Cook County criminal courts at 26th Street & California Avenue in Chicago, have been reined in and repeatedly rebuffed by U.S. District Judge James Zagel.
On cross-examination in the government's case against the former Illinois governor and his fundraiser brother, Robert Blagojevich, Zagel has sustained prosecution objections against repeating questions and asking witnesses to define a quid pro quo, even as defense attorneys have pointed to how prosecutors asked a witness the very same thing.
That resulted in a motion for a mistrial filed this week by attorneys for Rod Blagojevich. "Defense counsel has been systematically prevented from engaging in meaningful cross-examination by unwarranted sustaining of objections," the motion stated. "The result is the deprivation of a fair trial."
Zagel rejected that, but the clash in styles is significant. In session at the Dirksen Federal Building in Chicago, it sometimes seems as if one side is playing cricket when the other side wants to play baseball - and the judge is definitely a cricket referee.
"There are big differences between state court and federal court," said Andrew Stoltmann, a Barrington Hills attorney who has been following the case and blogging about it. "Judges tend to keep a very tight leash on the lawyers in federal court in comparison to state court. It can be somewhat stifling for a more theatrical lawyer like Sam Adam Jr."
"To say that federal court is more reserved and that 26th Street is more aggressive doesn't really capture it," said DePaul University law professor Leonard Cavise. "At 26th Street, the cross-examination is always very leading, suggestive and sometimes just pounding on the witness - interrupting, putting words in the witness' mouth, using voice volume and physical gestures as rhetorical devices, etc. In federal court, staying behind the lectern is the norm. It's much more civilized and 'clean,' which is why Judge Zagel is demanding that the defense counsel conform their examinations to the federal trial culture."
Adam grabbed all the headlines from Assistant U.S. Attorney Carrie Hamilton following their opening statements, but the lethal efficiency of the prosecutor's more methodical approach came to the fore this week in direct questioning of former Blagojevich chief of staff John Harris. In addition to playing recordings of Blagojevich wiretaps, Hamilton walked Harris back over almost every line in the transcripts, asking what he meant or understood about every nuance in the recorded conversations he had with Rod Blagojevich.
It might have seemed plodding sometimes in court, but it pounded the points home for the jury.
Adam won the acquittal of singer R. Kelly on statutory rape charges at 26th & Cal, but he's on an entirely different playing field at the Dirksen Building, in "a system that favors prosecutors, with many judges former prosecutors themselves and (with the) very deep pockets of the government, and it is a tough climb for defendants," Stoltmann said.
Zagel, a 1987 Reagan appointee who handled the so-called Family Secrets mobster trial two years ago, was previously an assistant Cook County state's attorney and director of the Illinois
Department of Law Enforcement.
Cavise also said a lawyer mustn't be expected to go off his game just to suit the circumstances. "Defense lawyers in federal court should not all of a sudden 'clean up their act,'" he added. "They may occasionally have to rephrase or leave a particular line of questioning but, unless what they're doing is objectionable as against the rules, a zealous defense requires that you do what you have to do. Hence, the constant struggle between counsel and the bench."
As for the motion for a mistrial, Stoltmann labeled it one in a series of defense ploys to lay the groundwork for a possible appeal. "The defense has to plan for the worst and hope for the best," he said.
And just maybe learn how to play cricket.