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Legal experts scoff at Blago's attempts to air wiretaps
By Ted Cox | Daily Herald Staff

Rod Blagojevich


Bill Zars | Staff Photographer, 2007

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Published: 2/12/2010 4:42 PM

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Legal experts have doubts about the whys and wherefores of Rod Blagojevich and his defense team attempting to put all the federal wiretap tapes in play when he goes on trial for government corruption later this year.

"There is no way, come hell or high water, I can see the government agreeing to that," said Richard Kling, a professor and attorney at the Chicago-Kent College of Law.

"There's no way the judge is going to grant a motion to let all the tapes in," said DePaul University law professor Leonard Cavise. "This is all grandstanding. The judge is going to admit whatever's relevant that he decides."

The deposed governor issued a plea of "innocent to each and every charge" contained in a new, 24-count indictment when he appeared in U.S. District Court before Judge James Zagel in Chicago on Wednesday. Then Blagojevich and defense attorney Sam Adam Jr. held a news conference saying they wanted the right to "play all the tapes" secretly recorded between Blagojevich and his top advisers at the end of 2008, with Adam insisting, "The tapes will prove him innocent." Adam said he had presented a motion that would allow federal prosecutors to play any and all tapes if the defense were granted the same right.

"Our request is not grandstanding," said Blagojevich defense attorney Sheldon Sorosky. "We're giving up the right to suppress the tapes ... because we want the tapes heard."

Both Cavise and Kling believe the defense attorneys are well aware that motion has no chance of being granted. "There's no such thing as saying in advance this evidence should be admissible regardless of what its prejudice or relevance is," Cavise said.

"It's a silly, sort of premature motion that isn't really intended to get anybody to agree to anything," Kling added. "And I would suppose that Zagel's position is going to be, 'I'll rule when I need to rule.'"

Typically, they said, the prosecutors present their case, and only then does the defense decide on its approach, with the judge ruling on what's relevant to the case against the defendant and what's extraneous.

"We recognize some tapes may be irrelevant," Sorosky said. He said he doesn't know if prosecutors will agree to their all-inclusive motion, but that if not he fully expects Zagel to rule on the tapes on a case-by-case basis. "I don't know what's unfair about that or grandstanding," he added.

Kling said it was unlikely the Blagojevich defense team was trying to lure U.S. Attorney Patrick Fitzgerald and his prosecutors into excluding tapes that would allow Blagojevich's attorneys in turn to exclude critical evidence.

"I can't imagine that," Kling said. "Fitzgerald's a pretty experienced prosecutor. The team he's got working under him by now know all they want to introduce, what they don't want to introduce, and I don't know of any prosecutor who's been essentially goaded into either introducing more or less because the defense attorney says, 'Here's what I'm going to do.'"

So what's the Blagojevich team up to? They suggest it's probably as simple as trying to influence the jury pool. "I would suspect they're aware of the fact that prospective jurors watch the media," Kling said. "Obviously, it gives Mr. Blagojevich an opportunity to scream again he's innocent and has nothing to hide."

Cavise added it may be an attempt to muddy the waters against what appears to be overwhelming evidence. "One often argues that three yards and a cloud of dust is sometimes the best defense," he said. "After all, the burden of proof is 'beyond a reasonable doubt,' and the more confused people become the more likely they are to say there's a reasonable doubt."

Blagojevich's next court appearance is set for March 17, with the trial now scheduled to begin June 3.