CHICAGO
07/27/2010 09:44 am ET Updated May 25, 2011

Blagojevich Defense Attorney Clashes With Judge, Could Be Held In Contempt

Much like a house of worship, a federal courtroom is steeped in traditional rules of decorum; chief among them an unremitting deference to the judge. Cross him at your own peril.

So it was an unorthodox turn of events Monday when a defense lawyer representing Rod Blagojevich told U.S. District Judge James Zagel that he could not abide by his rules.

Before he was to begin his closing argument on behalf of his client, former Illinois Gov. Rod Blagojevich, Sam Adam, Jr., an experienced criminal defense lawyer in the state system, told the judge he'd rather be held in contempt and go to jail than follow the judge's ruling.

The issue was what Adam would be permitted to say to jurors in his closing remarks in defense of his client, who is charged with federal corruption.

Outside the presence of the jury, Adam told the judge he believed he was entitled to argue that there were witnesses who were not called who might have elicited evidence exonerating his client. Doing so would be a clear violation of the Federal Rules of Evidence - rules in which Zagel is well versed.

"I have a man who is fighting for his life," Adam thundered. "I understand your honor's word...but I cannot follow your order."

"You will follow the order because if you don't, you'll be held in contempt," Zagel responded calmly.

"I will go to jail on this, your honor."

With that, Zagel adjourned the proceedings for the day and cautioned Adam to take the rest of the evening to formulate another argument, or, perhaps turn the job over to another defense lawyer on his team. He made this decision based on what he said was Adam's "profound misunderstanding of the law," and, he reminded Adam "it doesn't do your client any good to be held in contempt of court."

Adam wanted to talk about two convicted close associates of Blagojevich, Antoin "Tony" Rezko, and Stuart Levine. Both helped Blagojevich raise campaign funds for the Friends of Blagojevich campaign organization, which is at the center of the prosecution's conspiracy and racketeering case. It appears Adam was attempting to introduce evidence that was not presented at trial.

Judge Zagel kept reminding Adam of the well-established rule that a lawyer may not "draw an evidentiary inference that the other side did not call a witness that you could have called."

The defense called no witnesses.

Patrick J. Cotter, a partner in Barnes & Thornburg LLP where he is a member of the firm's litigation department and white-collar crime defense practice, explained the rule this way:

"Based on what I understand happened in court, it sounds to me like the judge is saying, correctly, that you can not argue or imply to the jury that witnesses neither side called would have testified in any particular way to help either side or hurt either side."

Under the rules, you cannot refer to what witnesses who were not testifying would have said, Cotter explained.

It seems unclear what Adam's strategy is. He created a dramatic scene that overshadowed the government's closing argument.

Zagel did note that some judges, likely in the state system, might be more lenient and allow this kind of argument.

If so, strict limits would be imposed. The lawyer might be allowed to mention that the other side didn't call witnesses they could have, but would likely not allow the lawyer to argue about what the witnesses might have said or not said.

Blagojevich's lawyers have unsuccessfully tried to get the case--based largely on FBI wire-tapped conversations--thrown out, claiming that the charges are a violation of Blagojevich's First Amendment rights. They unsuccessfully tried to argue the so-called "advice of counsel" defense - that Blagojevich had no criminal intent because he was talking with his lawyers while he was allegedly scheming to sell state jobs, contracts and a U.S. Senate seat in exchange for campaign contributions.

Having presented no witnesses, the defense team cannot argue about what their evidence showed, and, as we learned today, they can't argue about what they could have shown had they called any, or what the other side's phantom witnesses would have said.

The judge ordered the lawyers to meet him in court at 8:45 a.m. Tuesday morning, perhaps to go over the rules one more time. Presumably, Adam or another member of the defense team will then present the defendant's argument and the prosecution will issue its rebuttal argument.

Janan Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer.