Legal Commentary

Rod Blagojevich May Not Testify After All

By Jeralyn

Lawyers for former Illiniois Governor Rod Blagojevich told the judge today they planned on resting without calling any witnesses, including Rod. The judge told them to think about it overnight.

The reason, according to Sam Adam, Jr,:

"The government hasn't proven anything and by getting up there and answering questions it gives them credence to what they've put on so far," Blagojevich's attorney Sam Adam Jr. told reporters.

Sam Adam, Sr. told the jury in opening Blago would testify. That's usually a problem when you don't keep your promise to the jury. But the prosecution can't mention a defendant's decision not to testify and the jury will be told not to either discuss or consider it. [More...]

Blago's legal team is reportedly divided on whether he should testify. Sam Adam, Sr. is quite the orator. He can probably explain to the jury why they chose not to put on a defense, because there's no need, since the prosecution didn't fulfill its burden. Still, it's always risky to tell a jury in opening that the defendant will testify, because of the likelihood strategy will change once the evidence comes in.

Also today, Blago's brother and co-defendant Rob finished his testimony. While some say his credibility was hurt by the playing of a secret tape, it doesn't sound so bad to me. Rob said after court:

I told the truth, and if the truth is good, I did well."

So, will Blago testify? I think it's risky for them to rest with no witnesses, and if they call any, they have to call Rod. If he takes the stand, the jurors get to hear the Government's evidence a second time when he gives his explanations for saying certain things, and maybe a third time when the Government cross-examines him about his explanations for his statements.

But if he doesn't testify, the only evidence in the case is that produced by the Government, and his lawyer's closing argument is just that: argument, not evidence.

It's a tough spot to be in. I think if the defense closing argument is going to be a technical one -- he said what he said but the government failed to prove his statements establish some element of the charged statutes -- there's no reason for him testify. But if he's mounting a factual defense, like he didn't mean what the Government said he meant in making the statments (rather than that legally, his statements didn't amount to a crime), then he should testify. Also, how does he establish his defense of good faith reliance upon advice of counsel if he doesn't testify what that advice was?

Full post as published by TalkLeft on July 20, 2010 (boomark / email).