Blagojevich wavers on defense, testifying

In the media circus that is Rod Blagojevich's corruption case, the disgraced former governor appears to be having second thoughts when it comes to actually putting his head in the lion's mouth.

After a brief redirect of co-defendant Robert Blagojevich, defense attorney Michael Ettinger rested his case Tuesday, but contingent on the ex-governor's defense not calling any witnesses. With that, Judge James Zagel excused the jury and called a sidebar, where a divide emerged on Rod Blagojevich's defense team.

"I think he shouldn't take the stand," said Sam Adam Sr. afterward in the lobby of the Dirksen Federal Building in Chicago. Yet his son, Sam Adam Jr., thinks otherwise. "He thinks he should go on because he told the jury in opening statements he would go on," the elder Adam added.

Adam Jr. and Rod and Patti Blagojevich did not comment as they left the building.

Zagel evidently gave the lawyers until this morning to decide one way or the other, but the elder Adam said he was comfortable with the defense resting and throwing the case to the jury in the belief the government hasn't proved its 24-count case charging racketeering, extortion, bribery and conspiracy beyond a reasonable doubt. "They've proven nothing," he said.

That stance might also have something to do with the difficult cross-examination the ex-governor's brother Robert Blagojevich had to endure late on Monday and through the day Tuesday. At times during the extended grilling, Rod Blagojevich pursed his lips and his lawyers looked uneasy at the prospect of putting their client through something likely to be far worse, as the government collected information on Robert for four months, but investigated the governor for years.

"The testimony of the two brothers is clearly intertwined," said Barrington Hills attorney Andrew Stoltmann. "Surely, the prosecutors are trying to intimidate and rattle the former governor through a vigorous cross-examination of his brother. It might actually work to Rod Blagojevich's advantage to get a sneak peek to see what he is in for when he gets crossed."

That's a big if, at this point, though several trial watchers predict Rod Blagojevich will end up on the stand.

"Until it happens, it doesn't happen," said Richard Kling, attorney at the Chicago-Kent College of Law. "But I can't imagine, given their representations on an almost daily basis, both publicly and to the judge, that they can avoid it."

"All trial law is theater in some respect, but I don't think the Rob cross is intended to send a message to Rod," said DePaul University law professor Leonard Cavise. "He's testifying."

Yet, even as defense attorneys might help the ex-governor bolster his excuse that he was used by corrupt underlings and ill-advised on corruption law, prosecutors can tear that down in an instant.

Robert Blagojevich's successful testimony Monday was undercut at the end of the day when Assistant U.S. Attorney Chris Niewoehner cited a transcript in which Robert directly proposed swapping the appointment of Valerie Jarrett to the U.S. Senate in exchange for President Obama calling off the investigation conducted by U.S. Attorney Patrick Fitzgerald - the investigation that soon would result in Blagojevich's arrest in December 2008.

Robert Blagojevich testified that he idly agreed to his brother's speculation on what to swap the seat for in a wiretapped call because he was distracted while having coffee with his wife, but Niewoehner presented phone records that showed Robert had actually tried to reach Rod by phone more than a dozen times, where a defense exhibit had shown just a few calls.

Kling said putting the defendant on the stand is never appealing. "As a defense attorney, I can say the only time I would entertain that option is when I didn't have any other choice," he added.

If the defense decides at this point to spare Rod Blagojevich that experience and rest its case, it presents another set of problems. "Jurors want to hear from defendants even though they're not obliged to testify," Stoltmann said. "At the beginning, most of us believed he would not take the stand. But his counsel promised he would in opening and many of the jurors have heard his claims he was going to testify. Appearing on 'The View' and proclaiming your innocence but not taking the stand when your freedom is on the line might look very bad to the jurors. Credibility is crucial in these cases."

Which raises the possibility Rod Blagojevich will testify after all and this is just a stunt to build interest and throw prosecutors a changeup before putting the defendant on the stand. The Adams are known for their theatrics, and if they had genuine differences at such a critical juncture, would they really air them in public? "This could all be a giant ruse, but if it is the defense is playing a very dangerous game," Stoltmann said. "Jurors who decide cases and judges who do the sentencing, especially in federal court, don't appreciate or like some of the stunts that are more common in state court. This is obviously a huge decision and maybe the defense team is split on the issue of whether to call Rod Blagojevich or not. It is drama in its highest form."