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The Blagojevich Trial: The Sum of Its Parts Is Not Greater Than the Whole

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Rod Blagojevich goes to trial today. By now, you know who he is: the self-proclaimed "blacker than Barack Obama," former Illinois Governor, well-known for his perfectly coiffed hair, nylon jogging suits and FBI-recorded potty mouth.

The information in this case is overwhelming -- that is why I am shocked that Blagojevich is required to begin trial just a year and a half after his arrest. Keep in mind, his attorneys' (led by the fabulous father-son team, both named Sam Adam) last big victory was the case of R & B singer, R. Kelly. In that case, the Adams had six, I repeat six, years to prepare for trial in a criminal case that hinged mainly on a single piece of evidence: a videotape.

Let me make this short and sweet: I am truly baffled that the defense was barred from so much and that the trial is going today. Here are some key points to keep in mind during the biggest circus in the nation...

1. Eight (8) of the Government's potential witnesses have been convicted of major federal crimes, yet they have not been sentenced. (Stuart Levine pleaded guilty in July 2009, yet he remains to be sentenced; also, John Harris, Tony Rezko and 5 others await sentencing.) Christopher Kelly's suicide is off limits for the defense too. (He was a co-defendant and close friend of Blago.)

2. The yet-to-be-sentenced witnesses have an incentive to tell the jury what the Government wants. Not until after these people testify will the Government determine the quality of and "truthfulness" of the person's testimony in its decision to recommend a favorable sentence for their own crimes.

3. Government witness Stuart Levine's drug abuse is not allowed before the jury, even though he admitted to abusing Ketamine, a horse tranquilizer, among other illegal drugs. How can the jury not consider one's zombie-like state-of-mind when determining whether he is a credible witness? (A judge in the same court found that such evidence was "fair game," yet Judge Zagel ruled it inadmissible!)

4. Stuart Levine says he's been committing crimes since 1972, yet the defense cannot impeach him by asking about his lengthy criminal past. A tranquilized criminal. Lovely.

5. The defense was not given transcripts of the 500+ hours of FBI audiotapes. The prosecution suggested they will play only 100 hours of the tapes. The defense's request to play all of the tapes was denied.

6. There were a total of about 5-6000 conversations. During the recordings, the Feds turned the tapes on and off as a method of "minimization." Put another way, it was the Feds who determined what part of a conversation was important and worth recording.

7. The Government has 800+ witnesses. They have not shared with the defense who they intend to call and on what date. As a result, the defense must be prepared to shoot from the hip when a random person strolls into court.

8. Even though there is no indication of who's going to testify on any given day, the judge ordered the defense to tell the Government if they plan to mention Blago's "good acts" in their opening, so the Government can prep for a rebuttal. This makes no sense whatsoever. I have never heard of the defense having to provide the prosecution with their theories of the case. Plus, argument is not part of an opening statement!

9. The defense asked for police reports in September 2009 but did not receive the reports until March 2010. The 175,000 pages of reports were generated before September 2009 -- in fact, they were generated an entire year before they were received, in March 2009! 175,000 pages.

10. The defense asked for a 30-day delay of trial, in anticipation of the Supreme Court's "honest services" rulings on July 1. The judge denied the one-month delay. Now, even if the rulings on "honest services" are in Blago's favor, it's too late because the jury will have already heard potentially damaging evidence. Then what is the judge going to say, "All of the past month's worth of evidence...um...there are certain parts you should not take into consideration." Give me a break! A 30-day delay wouldn't have been the end of the world, especially since the Government's case is so airtight!

11. Before the voir dire ever occurred, the judge sent 300 of 400 potential jurors home for "hardship" excuses. Like, "I live with my mom and I don't have a car; therefore, I cannot be here every day." That guy probably got excused.

12. The judge said he'll revisit the defense's request to have Obama testify. Every lawyer knows this means the judge is not going to require the President's presence. Interesting, considering the President issued a "transition-team" memo that specifically stated that he had Rahm Emanuel call the Governor's office to discuss his favorite candidates for the Senate seat.

In spite of the rulings and prosecution's tactics, I believe Rod Blagojevich has the greatest defense lawyers on his side. Be careful, Mr. Fitzgerald: I don't think Lincoln is going to be so quick to roll over in his grave.