Former Governor Rod Blagojevich signed his book for Nora Zerante as he walked out of the Dirksen Federal Courthouse. Jose More/Chicago News Cooperative
Since the corruption trial of Rod R. Blagojevich began five weeks ago, a jury has heard recordings of him uttering an expletive more than 200 times, seeking big jobs for a vacant United States Senate seat, and searching urgently for ways to make money in exchange for state action. With crassness apparently proven beyond a reasonable doubt, the prosecution felt the jury had its fill.
The United States Attorney’s office left hours of recordings of the former Illinois governor on the cutting room floor as it wrapped up its case several weeks sooner than expected, and it kept two potential witnesses — Stuart Levine and Tony Rezko, convicted political fundraisers — off the stand.
The swiftness caught the defense by surprise and raised key questions by former prosecutors and defense lawyers about whether the government did enough to convince the jurors that Mr. Blagojevichwas a corrupt politician and — more important — that what he did was a crime.
“You have to be surgical, because at end of day you are going to be held accountable to the indictment,” said Jeff Cramer, a managing director at the Kroll consulting firm, who was part of the federal prosecution team in the trial of Conrad Black, the media executive who was convicted of fraud. “The jury is going to go through the indictment and parse out what elements they have to find beyond a reasonable doubt. Jurors at end of day will parse through these indictments, and you will see some challenges in this case.”
Establishing the point of diminishing returns is a key decision for the government in a case where there are hundreds of hours of audio evidence.
“As a prosecutor, you don’t want to do overkill,” said Richard Kling, a Chicago-Kent law professor. “There is a point at which the jury puts their fingers in their ears and says, ‘enough already.’.”
In the end, the government whittled down its audio evidence to 111 recorded snippets culled from the home, office and cell phones of Mr. Blagojevich, his brother Robert, and Alonzo Monk and John Harris, his former chiefs of staff. In addition, the jury heard recordings from listening devices that had been planted in the campaign headquarters of Friends of Blagojevich.
Though they originally indicated that they thought it would take up to four months to present their case against Mr. Blagojevich, prosecutors finished after just 24 days.
“For the prosecution, less is more, so that is a clear indication that they feel their case went very well,” said Ronald Safer, the former lead prosecutor in the Black case who is now a partner at Schiff Hardin.
There is another advantage to the shortened prosecution case, said Ron Allen, a law professor at Northwestern University.
“You have an engaged jury that was told that the government’s case was going to take 16 weeks,” he said. “This is a great strike in the government’s favor.”
However, some observers say that in wrapping up so quickly, prosecutors may not have clearly established how Mr. Blagojevich’s schemes constituted crimes. The former governor is charged with 24 counts ranging from conspiracy to extortion.
“I think, frankly, what the prosecution did not do exquisitely is define the crime,” Mr. Safer said. “I think people say, ‘Well, where is the smoking gun? I don’t see the smoking guns.’ There are smoking guns. Those tapes are really smoking guns for the crime. The problem is the prosecution didn’t define the crime.”
Mr. Safer said that if he were prosecuting the case, he might have taken the unusual step of asking Judge James Zagel to explain to jurors the elements of the crimes before witnesses were called. Other legal experts argued that this was unnecessary, that the law can be fully fleshed out for jurors by the prosecution’s closing arguments and the judge’s jury instructions.
In the 2005-6 trial of Governor George Ryan, Mr. Blagojevich’s predecessor, there was no recorded evidence, and the government relied almost entirely on testimony from witnesses. This dependence had its problems from the start, beginning with the tear-stained, at times contradictory testimony of Scott Fawell, Mr. Ryan’s former campaign manager who was a key prosecution witness.
“Having tapes makes it a much more difficult case to defend than Ryan’s was,” said Joel Levin, one of the Ryan prosecutors who is now an attorney at Perkins Coie.
The challenge for the Blagojevich prosecutors was to strike a balance between supporting the indictment and going too far or too long in their presentation, experts said.
While the recordings produced powerful atmospherics, the government had to be wary that they did not go over the top, inadvertently playing into a defense argument that Mr. Blagojevich was prone to impertinence, and that his most incriminating words should not be taken seriously.
To that end, prosecutors spent some time building up to their most blustering recordings of the former governor. They waited until the third week of the trial before introducing the particularly explosive Nov. 10, 2008, conference call between Mr. Blagojevich, his wife Patti, and several of his key political advisers. In it, a rattled Mr. Blagojevich alternated between tones of defiance and despair as he implored his kitchen cabinet to help find him a way out of a job he loathed and, according to testimony, often avoided.
“The whole world’s passing me by and I’m stuck” in this job as governor now, Mr. Blagojevich told the group, adding an expletive when he talked about his position.
Mr. Blagojevich’s attorneys are expected to begin calling their witnesses on Monday, after both sides finish debating which tapes the defense can present to the jury. The defense has said that it intends to argue that Mr. Blagojevich did not believe his conduct was unlawful, blaming aides and advisers for misleading him.
As the defense scrambles to finish preparing its case more than a month ahead of schedule, Mr. Blagojevich’s lawyers will seek to quickly let some air out of the government’s balloon.
“It is critical for them to put a witness on the stand early and effectively that is going to put a positive face on the defense theory,” said Lance Northcutt, a lawyer.
However, the consensus among many of those following the case is that Mr. Blagojevich’s salvation comes down to his own testimony. The former governor and his attorneys have told the court that he will take the stand.
“If you can say anything about Blagojevich,” said Ken Cunniff*, a defense lawyer, “it is he clearly believes in what he is saying, and whether that belief is communicated to the jury can win or lose the case.”
Patrick Collins, the former Assistant United States attorney who was the lead prosecutor in the Ryan case, said he thinks Mr. Blagojevich’s legal team erred in not better preparing the jury during opening arguments to anticipate the offensiveness of the tapes.
“One of the potential flaws in the defense case is that the honest-man portrait that was painted of Blagojevich in its opening is inconsistent with the vulgarity and decision-making processes and personal habits he engaged in,” Mr. Collins said.
The government’s final recorded conversation came on Tuesday afternoon, with Pat Magoon, the president and chief executive of Children’s Memorial Hospital, on the stand.
Mr. Magoon testified that he had felt pressured by Robert Blagojevich to provide a $50,000 campaign contribution to Friends of Blagojevich in order for the governor to keep his pledge to increase state Medicaid physician-reimbursement rates. The allegation is considered to be the prosecution’s key sequence in the case, which is most likely why they waited until the end of their presentation.
“I’m following up on a conversation we now had a couple of weeks ago and I called him last week,” Robert Blagojevich is heard saying to Mr. Magoon’s receptionist. “I’ve not heard back from him and so I’m hoping he’ll call me back.”
As Mr. Magoon testified this week, he never called back. That was one call the government did not have on tape.
*Correction: The original version of this article misspelled Ken Cunniff’s name.
