Can Blagojevich lawyer go on offensive while backtracking?

Sam Adam Jr. has his work cut out for him.

After the government laid out its corruption case against Rod Blagojevich with 27 witnesses over a brisk 23 days, he has to go back to the jury in his closing argument and explain why the disgraced former governor didn't testify, when Adam said he would in his opening statement.

"He's not going to let some chubby, four-eyed lawyer do his talking for him," Adam said at the start of the trial.

Yet evidently Blagojevich is going to do just that when Adam tries to argue the jury out of convicting him on charges of racketeering, bribery, extortion and conspiracy in closing statements set to take place Monday at the federal courthouse in Chicago.

"Juries hate broken promises, especially one so important as whether a defendant who faces a long sentence if convicted is going to testify," said Barrington Hills attorney Andrew Stoltmann. "There is an old axiom that you under-promise and over-deliver. By insisting that Blagojevich would testify, there is the chance this alienates some of the jurors."

Look for Adam, however, to attempt to turn this perceived handicap to his advantage, with an argument he was already testing out in front of the media last week after the ex-governor's defense formally rested without calling a single witness.

To the question, "Where was Rod?" he'll answer, "Where were star prosecution witnesses Tony Rezko and Stuart Levine?"

"In closing argument, Sam will talk about how Rod's testimony was contingent on Rezko or Levine or some other evidence showing up," said DePaul University law professor Leonard Cavise. "It didn't, so he didn't need to testify. It'll be tricky, but it happens frequently at 26th Street," the state courthouse on Chicago's West Side, as opposed to the Dirksen Federal Courthouse.

"I think you will see the defense argue in closing that the prosecution's case was so weak, there was no need to put Rod Blagojevich on the stand," Stoltmann added. "The defense will argue there were multiple witnesses the prosecution didn't call that created no need for Rod Blagojevich to testify. The defense will put the best spin they can on it, but any way they dress it up, it is still bad."

Adam seemed to be trying those arguments out for himself in addressing the media last week. "We are all adults," he said he'd tell the jury. "Did I believe at the time he was going to testify? Yes I did. Have times changed? Yes they have."

Although Adam admitted he and his father, fellow Blagojevich defense attorney Sam Adam Sr., initially clashed on the ex-governor testifying, with Adam the younger wanting it and the senior not, Adam Jr. warmed to the idea of arguing the government had simply not made its case.

"Putting him on the stand," he said, in effect tells the jury, "'We think they proved you guilty. You need to answer.' And right now my father has said and the governor has said, 'We don't need to answer that.'

"I pretty much just gave you part of my closing," he added.

Yet first the government will get the opportunity to lock down its case against Blagojevich in the minds of the jury. Assistant U.S. Attorney Chris Niewoehner is slated to open the closing, with lead prosecutor Reid Schar on rebuttal. They figure to hammer home their contention that Blagojevich deliberately and intentionally engaged in conspiring to commit extortion and bribery by quoting from numerous wiretap transcripts of Blagojevich's own conversations.

They'll be cold, confident, methodical, and they'll no doubt attack Robert Blagojevich's defense that he was just idly agreeing with his brother in a damning phone conversation while having coffee with his wife by emphasizing that he made 20 calls trying to contact his brother during that coffee break, a point brought up in cross-examination when he was on the stand in his defense.

The key for Niewoehner, in the opinion of David Erickson, director of the trial-advocacy and criminal-litigation programs at the Chicago-Kent College of Law, will be seizing the initiative and putting Adam on the defensive. He said he expects them to "show how they proved each and every count" to "make the defense have to get up and answer those counts." They'll hope to keep Adam from getting on an emotional roll. "If the defense spends most of their time trying to answer those counts," Erickson said, "strategically he's going to be way out in front."

They'll also pooh-pooh defense claims that Blagojevich was unwittingly used by corrupt underlings, with an argument along the lines, he said, of: "This dupe who they're trying to make you think is an idiot never lost an election. This dupe went to Northwestern University. This dupe graduated from Pepperdine Law School." Then they'll draw on tape transcripts, such as Blagojevich telling his brother to be careful what he says to a fundraiser and act as if "the whole world's listening," to show criminal intent.

Erickson said he fully expects Schar to finish strong on rebuttal. "I'm sure he's been waiting for this for two years," Erickson said. "Any prosecutor who's ever tried a big case has been thinking about the rebuttal argument for ever and ever. There's plenty held in reserve."

He added that it might be most damaging to finish with Blagojevich's taped remark, addressed to the public, to "(bleep) you all."

"You really want to know what he thinks about the people of Illinois?" Erickson imagined himself telling the jury. "Here's what he thinks. And I'd play the tape."

Adam Jr. will no doubt try to combat that with his renowned theatrics, and while some of the substance is suggested above, he'll certainly have other tricks and devices at hand as well. After all, this is the lawyer who argued that the jury would be calling the victim in the R. Kelly sex tape a "whore" if they convicted the singer in that case - and sold it to attain a verdict of not guilty on all counts. Blagojevich is hoping Adam can work the same magic in his case that he worked for Kelly at 26th and California.