Huffpost Chicago

Blagojevich Defense Wants Evidence Seal Lifted

Posted: Updated:

CHICAGO — Attorneys for impeached Illinois Gov. Rod Blagojevich continued their barrage of pretrial motions with a new one Thursday that asks a federal judge to lift a court-ordered seal on all evidence, including hundreds of hours of secret FBI wiretap recordings.

The seven-page motion filed at the U.S. District Court in Chicago early Thursday – two months before Blagojevich's corruption retrial is slated to start – argues the two-year-old order barring the public release of evidence impairs Blagojevich lawyers' more than prosecutors.

"It is a fundamentally unfair playing field," the motion says.

Blagojevich, 54, faces an April 20 retrial on 23 charges, including that he tried to sell or trade an appointment to President Barack Obama's vacated U.S. Senate seat. He's also accused of trying to shake down donors for campaign cash. At his first trial, jurors deadlocked on all but one count of lying to the FBI.

Of hundreds wiretap recordings, only a small percentage were played at the first trial. The rest are barred from release by the seal order, including recordings of conversations between Blagojevich or his aides with prominent public figures not accused of any wrongdoing in the case.

Thursday's filing also accuses the government of selectively releasing out-of-context excerpts before the first trial that "poisoned the jury pool," arguing that the seal – called a protective order – makes it impossible for the defense to respond.

"The protective order has only served to permit the government to present half-truths and distortions and has handicapped Blagojevich's ability to fight back against false government allegations and set the record straight," the motion says.

In the most notorious wiretap outtake released by prosecutors before the first trial, Blagojevich is heard saying about Obama's vacated seat: "I've got this thing and it's (bleepin') golden. . . . I'm just not giving it up for (bleepin') nothing."

U.S. Attorney's office spokeswoman Kim Nerheim declined any comment on Thursday's motion.

One justification for the seal on evidence, the motion says, was the possibility that making the evidence public could interfere with other pending prosecutions. But the motion says it understands the investigation in the case has essentially ended.

The latest motion is the third within two weeks. Presiding Judge James Zagel had set Feb. 15 as a deadline to file all pretrial motions, but the defense this week asked for another few days. The next status hearing is Feb. 22, during which Zagel could accept or reject those motions.

Thursday's filing says prosecutors played just 2 percent of "thousands" of recordings at Blagojevich's first trial. It argues that prosecutors should now have no interest in keeping all the tapes under wraps.

"If Blagojevich has violated the law, as the government alleges, why would the government seek to keep the evidence under lock and key?" the motion asks.

Thursday's motion echoes a repeated refrain from Blagojevich as he went on a media blitz in the months after his arrest for prosecutors to play all the tapes, claiming that doing so would show he had no criminal intent.

At his first trial, Blagojevich's attorneys rested without mounting a defense, neither calling any witnesses nor playing any tapes of their own. They could have attempted to introduce tapes not played to jurors by prosecutors, though Zagel had already ruled that many recordings weren't admissible.

Judges can have multiple reasons for sealing evidence, including to prevent potential jurors from hearing evidence though the media that they may have to assess at trial.

On Monday, the defense filed a motion asking Zagel to let his lawyers play around 100 excerpts of FBI recordings made before Blagojevich's arrest on Dec. 9, 2008. They argue the recordings would show he sought to forge a legal political deal to name Illinois Attorney General Lisa Madigan to Obama's vacated U.S. Senate seat.

Prosecutors dismissed that assertion in an uncharacteristically quick response filed later Monday, saying that the defense motion appeared to be an attempt to influence potential retrial jurors.

In the same response, prosecutors denied a claim made in a defense motion last week that key evidence – including a call allegedly involving former White House chief of staff and current Chicago mayoral hopeful Rahm Emanuel – was "mysteriously missing."