Chicago U.S. Attorney Patrick Fitzgerald is an old hand at political corruption trials. The initial evidence he's brought against Illinois Gov. Rod Blagojevich appears to be overwhelming.
But defense lawyers know that wiretaps often can be a double-edged sword, and that there are weaknesses to be exploited in the 76-page criminal complaint against Blagojevich and his chief of staff, John Harris.
"I don't want to sound like this is a wonderful case to defend because it's not," says Patrick Cotter, a white-collar defense partner at Chicago's Arnstein & Lehr. (Cotter worked with Fitzgerald when the two were assistant U.S. attorneys in Manhattan.) "But already we see a couple tactics and possible arguments and theories that the defense might use to undermine some of the allegations."
With Blagojevich reportedly still looking to add to his legal team, The Am Law Daily reached out to several former prosecutors-turned-defense-lawyers to see how they would proceed if tasked with defending the governor.
BRACING FOR INDICTMENT, PURSUING A PLEA
Fitzgerald has told reporters that investigators went the rather unusual route of beginning their case with a criminal complaint instead of an indictment because he was concerned about stopping imminent criminal activity.
"One of the advantages of the federal prosecutorial system is that you usually get to control the timeline when you bring the charges," says Cotter, who helped prosecute notorious New York mob boss John Gotti. "The mantra we were always taught is, 'You should be prepared to go to trial a week after you bring the charges.'"
Federal prosecutors consider the indictment the end of an investigation, says Cotter, not the beginning. Since Fitzgerald had to pull the trigger early, now he'll have to play catch up.
Fitzgerald will have 20 days to bring an indictment against Blagojevich or grant him a preliminary hearing, says Clifford Chance litigator Wendy Wysong, a former assistant U.S. attorney in Chicago. Wysong was part of a team that prosecuted former Illinois Democratic congressman Daniel Rostenkowski on corruption charges in 1994.
"If there's a preliminary hearing, prosecutors only need to show probable cause, so it'll be a truncated hearing where they don't have to put on all of their witnesses, usually just the FBI agent who submitted the affidavit," she says. "But if there's a chance of a plea, defense counsel [for Blagojevich] are likely to seek an extension as they try and fashion what the charges will be."
A plea certainly isn't out of the question, says Barry Pollack, a defense attorney with Washington, D.C.'s Miller & Chevalier who represented former New York Republican congressman Vito Fossella on his drunk driving conviction in October.
"Often when you see a case proceed by criminal complaint as opposed to by indictment, it is done to allow some flexibility for those kinds of negotiations," he says. "The complaint itself is just a placeholder and prosecutors are likely deciding right now what they will charge, if they haven't done so already."
"The fact that they put out such a well-written complaint, affidavit and press release shows that this is not a rush job," Wysong says.
One potential complicating factor for a Blagojevich plea: The role of his wife, Patricia, in the investigation. Many of her real estate deals came under suspicion during the trial of Chicago political fundraiser Antoin "Tony" Rezko, convicted on fraud and money laundering charges in June.
ATTACK (AND EMBRACE) THE RECORDINGS
"Personally, I've always thought it hard to cross-examine a tape," Cotter says. "But the first thing you do with the tapes is challenge the warrants authorizing them to see if any mistakes were made."
Pollack says defense lawyers will devote hours to scrutinizing transcripts of the tapes looking for positive things Blagojevich said that could bolster his defense.
"The release of select portions from the tapes help people draw conclusions of guilt," Pollack says. "The big concern I would have is that by the time you get to trial, a jury may have already made up its mind and not want to hear the other side," he adds. "I'm convinced there is another side."
As Cotter sees it, the weakest charge in the matter is that Blagojevich sought to have members of the Chicago Tribune's editorial board fired in return for state financial assistance to the newspaper's parent company.
But the complaint says nothing about whether the FBI approached someone at the Tribune and asked them if John Harris or anyone else tried to extort them into firing people.
"So maybe this was all just talk," Cotter says. "Maybe this was just a bunch of guys blowing off steam, like Hitler in his bunker or Nixon in the White House."
While that's poor political company, if prosecutors can't produce someone from the Tribune to testify that they were extorted, Cotter says, then they don't have the overt act necessary to definitively say a crime took place.
"You don't know if [Blagojevich] was playing along with his staff or if they were having a serious conversation," she says. "There are very few conversations that he seems to have had with outsiders, so prosecutors will have to make the case that this is more than just horse-trading, even if money never actually exchanged hands."
Unfortunately for Blagojevich, Wysong says, there might be many hours of recordings with possible witnesses that don't show up in the government's complaint. Defense lawyers have to consider who else on the tapes prosecutors are cutting deals with in return for testimony.
EXPOSE THE COOPERATORS
Most defense lawyers hew to one time-honored tactic when attacking witnesses that cooperate with prosecutors: Tell a jury they're liars.
The Blagojevich case has plenty of politically connected businessmen, fundraisers and lawyers that have either been convicted or pleaded guilty to corruption charges in recent years. Some may be eager to reduce their sentences by testifying against the governor.
"The most interesting thing to me in the affidavit were the footnotes about Tony Rezko," Cotter says. "They basically say [Rezko's] attempting to cooperate but they're not relying on him in the affidavit because [prosecutors] haven't been able to determine whether or not he's telling the truth!"
More importantly, Cotter says the footnotes show that Rezko's memory of certain events differs from other potential cooperators like Chicago businessman Stuart Levine. Prosecutors never want to put contradicting witnesses on the stand, says Cotter, but defense attorneys sure do.
"I'd get Rezko to say 15 times over that Levine's a liar and then when Levine gets on the stand, I'd have him say Rezko's a liar," Cotter says. "And then you can point to the jury and say, 'Look, their own witnesses can't even agree!'"
While tape recordings often corroborate the evidence against a defendant, they also can contain statements by cooperating witnesses that can be used against the prosecution. A voice on a tape rebutting a prosecutor's case, says Pollack, can be more persuasive to a jury than dueling claims of "he said, she said" between witnesses in court.
But while calling one cooperating witness a liar might be effective, Pollack says, as the number of cooperators increases that argument becomes exponentially more difficult to sell to a jury.
Plus, Wysong says, Blagojevich never has had the public image of a corruption crime-fighter. Having several criminally charged individuals connected to a defendant only reinforces negative stereotypes of that defendant to a jury.
CALLING ALL LAWYERS
Cotter says Blagojevich's current lawyer, Sheldon Sorosky, is a good lawyer, but expects the governor to add to his legal team because of the seriousness of the charges and the strong opposition he's facing in Fitzgerald.
"This is not some incredibly complex, Enron-like fraud where you need a huge legal team with hundreds of associates doing document review," Cotter says. "It's a corruption case."
Two lawyers Blagojevich has kicked the tires on: Michael Monico of Chicago's Monico, Pavich & Spevack and solo practitioner Thomas McQueen, a former partner at Jenner & Block and Sonnenschein Nath & Rosenthal. Both tell The Am Law Daily that they're likely conflicted out from representing the governor because they represent clients involved in the Rezko case. (Reports on Sunday had the governor meeting with Edward Genson of Chicago's Genson & Gillespie, a well-regarded litigator best known for defending Conrad Black and R&B star R. Kelly.)
But with Blagojevich's billing issues with Winston & Strawn already well-documented -- one lawyer who requested anonymity says the joke in the Windy City in past years was to send campaign donations directly to the firm -- Cotter wonders who will be willing to take the financial risk. (The governor's co-defendant, Harris, is being represented by suburban Chicago litigators Terry Ekl from Ekl Williams and James Sotos from Sotos & Associates.)
"This will be a very expensive defense to mount," says Cotter, adding that a "bare bones" defense would cost a client at least $250,000. "Now that might be what Dan Webb charges for a suppression hearing," Cotter jokes, "but lawyers looking to take this case for the notoriety of the defendant really need to think about how they'll balance that with work done for paying clients."
Cotter expects an indictment against Blagojevich to include a forfeiture count seeking to freeze the governor's campaign funds. Defense lawyers must also consider the quality of their opponent.
"Whoever takes this case is going to be facing the 'A' team from the U.S. attorney's office," Cotter says. "Everybody knows that's a damn fine office and there won't be any weak links."
That's not to say Blagojevich doesn't have options.
"Chicago obviously has plenty of lawyers with experience representing corrupt politicians," Wysong says. "So I would think someone will take this on."
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.