Blagojevich punts defense, attorneys claim acquittal to come

In a news conference after the surprising announcement that they would not be fielding a defense, Rod Blagojevich's attorneys put a lot of bluster into defending their decision.

"The law is clear," said Sam Adam Sr. "The burden of proof is on the government. They did not meet their burden of proof, and I think the jury will say that."

"We think by putting him up there to answer anything makes it seem as if the government was right," Sam Adam Jr. echoed, "that he had something to answer (to)."

That restraint was surprising to many, given how for a year and a half Blagojevich hasn't missed a chance to say he would testify, that his wife, Patti, would testify, that he wanted to "play all the tapes" and that he would prove himself vindicated. At one point, he even challenged U.S. Attorney Patrick Fitzgerald to meet him in court if he were "man enough."

In the end, however, he decided discretion was the better part of valor.

So given what appears to be the overwhelming evidence against Blagojevich - much of it in his own wiretapped conversations - there may have been other issues at play.

One of them might be the inevitable appeals that would follow a conviction on any of the 24 counts against the former governor. The attorneys, of course, aren't saying anything about that; they're intent on an acquittal, with both Adams insisting they're "100 percent" confident the jury will side with them. Yet it could be in the back of their minds as a worst-case option.

Blagojevich's fate will be decided based on six weeks of prosecutors pressing their case using his own wiretapped conversations combined with the testimony of 27 witnesses over 23 days - contrasted against the two witnesses called in co-defendant Robert Blagojevich's defense over two days, his wife and himself.

Some observers say not taking the stand could be a longshot weapon in an appeal.

It also sets up a scenario for him to blame it on his attorneys, after months and months of vows to get on the stand to prove his innocence.

"By not testifying, Rod Blagojevich, if convicted, can claim he wanted to testify, but his counsel wouldn't let him. It will allow him to attempt to save face," said Barrington Hills attorney Andrew Stoltmann. "It may also open up a possible ground for appeal with Mr. Blagojevich arguing incompetence of counsel. It is an extreme longshot, but it might be something up the sleeve of the former governor."

Yet DePaul University law professor Leonard Cavise said it might actually limit Blagojevich's grounds for appeal. "I think not putting on a defense was always an option. But, when they talked about him taking the stand, they convinced us all," he said. "The appeal is potentially damaged by his not testifying because it is seen as a waiver of constitutional rights - at least in part."

The Adams pooh-poohed the notion that they halted the case to prevent the government from presenting even more damaging evidence held in reserve for rebuttal after Blagojevich's testimony.

Yet Stoltmann said that was a potentially "brilliant move" on the part of the defense. "Clearly the prosecutors held evidence back in its case in chief in anticipation of springing it during the cross of Rod Blagojevich," he said. "Now, they don't have the opportunity to do so.

"Plus, everyone and their sister has heard Blagojevich claim his innocence on TV, on the radio and outside the courthouse," he added. "The jurors have likely heard this as well, but now the prosecution doesn't get the chance to fillet him under oath. The defense was dealt a hard set of facts. They have imported some of the tactics common in state court, but not often seen in federal court. The defense might be crazy like a fox."