Blagojevich request for trial delay doubly rebuffed

The Blagojevich defense team was hit with a double whammy today in its appeal to delay the June 3 start date in the former governor's corruption trial.

The 7th Circuit Court of Appeals rejected the request for a delay in his corruption trial, finding that it had no jurisdiction because the issue was "from neither a final decision nor otherwise immediately appealable." It also denied a request for mandamus relief over the uncertainty of "honest services" law because of the other charges faced by Robert and Rod Blagojevich.

Then, U.S. District Judge James Zagel issued an order finding the appeal "frivolous," siding with prosectors in their argument against a delay.

The rulings came down after prosecutors and the defense had argued the delay - and the appeal - at a hearing before Zagel at the Dirksen Federal Courthouse in downtown Chicago.

Zagel has ruled the corruption trial should go ahead June 3 as planned. Lawyers for Blagojevich and his brother, Robert, say the trial should be delayed until after the U.S. Supreme Court rules on an "honest services" statute on which a portion of the indictment against the two is based. That ruling could come next month.

Last Friday, lawyers for the Blagojeviches filed a motion with the Court of Appeals seeking to have that court delay the trial.

Federal prosecutors replied that the motion is a "frivolous" attempt to delay the trial.

Zagel agreed, but Blagojevich defense attorney Sam Adam Sr. said if the motion is ruled "frivolous," he would appeal that as well, so "either way we're going to get a higher-court decision on this point."

He got his decision earlier than expected, although Adam also said that if rejected he would take it to the Supreme Court, which would seem to be the next course of action for the defense in its attempt to delay the trial.

Assistant U.S. Attorney Edmond Chang, chief of the appeals division, argued the government's case and insisted they should hold to the start date.

"This court can proceed despite the filing to the court of appeal," he said. "We ought not to be wasting time here."

The prosecution also argued a lack of jurisdiction at this point for the appeals court, which the court agreed with.

Neither Blagojevich appeared at the hearing.

The "honest services" statute, insisting public officials have an obligation to render "honest services" to the people, has been used to convict disgraced former Illinois governors from George Ryan back to Otto Kerner. Yet Supreme Court Justice Antonin Scalia has called it "nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct."

A collection of cases arguing the constitutionality of the law was argued before the high court this term.

"We are saying we can't make a persuasive argument without knowing the charges," said Sheldon Sorosky, another attorney for Rod Blagojevich. "It would be improper to begin a trial charging anyone with an offense which might very well be declared unconstitutional two to three weeks into that very trial."

The prosecution reconfigured its indictment against the Blagojeviches earlier this year to emphasize racketeering, extortion, bribery and conspiracy over "honest services," and Chang said the case could continue whatever the ruling on the matter. The appeals court agreed with that argument as well.

Yet Adam tried to use that as leverage to get those charges dropped entirely.

"If that's the government's position, then go ahead and dismiss the honest-services charges and we'll go to trial on what's left," he said. "They want to have it both ways."

Another hearing is set for Friday, when the defense is expected to present its list of the secretly recorded Blagojevich tapes it wants played at trial. Adam said he expected it to add up to "significantly less than 200 hours."

Zagel has also scheduled for Monday a conference setting procedures for how media will be allowed to cover the trial.