The defense has rested in the corruption trial of Illinois governor Rod Blagojevich without letting the jury hear his testimony. Other people are discussing what it’s fair to assume about Blagojevich’s guilt based on his not testifying [be sure to read Scott Greenfield’s scathing response in the comments below], but I’m wondering how we’re hearing about so many details about the inner workings of the defense team.
Last week, criminal defense lawyer Stuart Goldberg was quoted in People discussing his meeting with actress Lindsay Lohan to discuss the possibility of representing her:
“My impression of Lindsay is that she’s a fragile lost child – a sleeping beauty with her head in the sand. I found her not fully forewarned of the consequence of her actions,” Stuart V. Goldberg, who was contacted by Lohan after her attorney resigned, tells PEOPLE.
“I’m concerned that she’s not disciplined or tethered enough to the reality of adult consequences,” he says. “She doesn’t seem to have the awareness of what’s going to befall her.”
New York personal injury lawyer Eric Turkewitz called him out about client confidentiality:
Why the hell is this Stuart Goldberg, apparently a Chicago criminal defense lawyer, talking about what he heard or saw in the confidence of his practice? And why would any future client ever trust him to keep a secret?
I had all that in mind as I read a report in the Chicago Sun-Times about the decision that Blagojevich should not testify:
But sources told the Sun-Times that despite the public show of discord, all the members of Blagojevich’s legal team — and the former governor himself — actually agree that Blagojevich should not testify.
The decision, which appeared to stun prosecutors, one of whom stared toward the former governor as he learned of the defense’s intent, is said to have come late Monday after a night of wrangling.
During preparations with his own lawyers and others, Blagojevich showed signs that he would have trouble answering questions clearly and succinctly and might not be able to withstand what is expected to be a withering cross examination, sources said. The defense also took into account the possibility that the government, which put on a quick case after only six weeks, had rebuttal witnesses ready, potentially including convicted businessman Tony Rezko.
How are Sun-Times reporters are getting information about legal decisions from inside the Blagojevich camp? Lohan’s lawyer appears to be a publicity-hungry fool who’s trying to attract attention to himself by talking about his celebrity almost-client. But Blagojevich is being defended by Sam Adams, who already has a big reputation for not being particularly foolish.
The Chicago Tribune is also reporting a similar story, so unless there’s some way in which this leak is part of the defense strategy, it sounds like somebody on the defense side is leaking privileged information to the press.
If I had to guess who’s talking too much, the obvious culprit is Rod Blagojevich.
Using Jack Marshall as an example of people discussing “what it’s fair to assume” about Blago’s decision not to testify, fails to make a credible point. There is probably no pseudo-lawyer online who has less credibility and has demonstrated a greater inclination to miscomprehend the nature and purpose of such rights and choices. He’s done so again, and apparently in a way that appeals to non-lawyers who similarly don’t understand why one can’t just jump to simplistic assumptions in the absence of information.
No credible, competent lawyer would assume that Blago’s decision not to testify is properly evidence of guilt. To suggest so, as Marshall does, is idiotic. This isn’t an idea that should be promoted as even marginally credible, even by non-lawyers.
We hope to get beyond the lowest and worst understanding of how such choices are made. It’s bad enough that someone like Marshall has a voice on the internet, but there’s no reason to promote ignorance.
Yeah, Scott, I was kind of waving the red cape in front of you by linking to that piece by Marshall. You law-talkin’ guys haven’t been leaving enough comments on my posts lately.
Originally, I pointed out that Marshall seemed to be saying that it was ethical for jurors to use Blagojevich’s decision not to testify against him and for them to take notice of unsworn media reports, both of which sounded badly wrong to me. However, since he’s a lawyer and I’m not, I decided to limit myself to just a snarky reference, especially since this wasn’t the main point of my post. Somehow, the snark seems to have gotten lost in the editing.
Sorry about going off on a very minor aspect of your post, as I agree with you otherwise. It’s just that the ideas Marshall suggests, that the whole 5th Amendment thing is some legalistic technicality that real people should ignore, can be ethically held against Blago and proves his guilt, is so incredibly wrong that I couldn’t stand it. My bad.
I think we can usefully distinguish between the rules of court and the rest of society. Blagojevich proclaimed his innocence loudly and clearly everywhere except the witness box. You and I and even Jack Marshall are free to use that fact to draw inferences about whether or not Blagojevich is a douchbag. (My guess: Yes he is!) That in no way relieves the jury of their duty to follow the rules they swore to uphold. Marshall’s post seems to ignore this distinction.
As I was reading the post, I had the same thought you did: Blago probably shot his mouth off to the press.
The guy seems to have no “off” switch, or even a filter of any kind.
I would be very careful about going there. There are many reasons having absolutely nothing to do with guilt that would cause a criminal defense lawyer to advise his client, even Blago, not to testify. The assumption, that every defendant should testify unless he’s guilty, is simplistic and often wrong.
In Blago’s case, he’s pronounced his innocence to the media with some regularity, but that’s not the same as testifying and being subject to cross. Also, we have no idea what other areas of cross may exist that could be used to smear or impeach him but don’t relate to guilt.
My guess is that he’s a douchebag too, but in or out of court, don’t assume that the failure to testify has any significance as to guilt, whether as a rule of law or the dreaded “common sense.” It’s not necessarily true.
Blago seems like the kind of guy who could shoot a nun in front of a thousand witnesses and three news networks and still try to talk has way out of it. And all through the arrest and indictment and trial and sentencing, right up until the needle goes in and poison starts flowing, he’d still be thinking he’s just about to win everybody over to his side.
Scott, I think we mostly agree. We don’t know enough to be sure what it means that Blago didn’t testify. On the other hand, I think there’s not much harm in amusing ourselves with a little speculation.
That said, I’m pretty sure that if I were a lawyer, I wouldn’t want to put a loose cannon like Blago on the stand. And I know that if I were on trial, I wouldn’t want to take the stand. I don’t think very quickly on my feet, so I’m pretty sure a prosecutor could trick me into following him down the road to my destruction, and any attempt I made to correct the damage (“Uh, 18 questions ago when you asked me [whatever], my answer assumed you meant [this one thing] but with that last question I now realize you meant [this other thing]…”) would just make me look shifty, as would any attempt I made to slow down and answer each question with a lot of qualifications.
And I’ve got to wonder, given that Blagojevich’s changing his mind and deciding not to testify “appeared to stun prosecutors,” if this switch wasn’t at least a little strategic. I wonder how much time the prosecutors wasted preparing their cross…
There is no shortage of things with which to amuse ourselves when it comes to Blago. I’m more concerned about the “out of court” integrity ot the decision not to take the stand. Don’t forget that alt/DB Marshall (remember, that was how I got on this subject) suggested that it’s a technicality that really means the defendant’s guilty. That needed to get straightened out.
As for Blago, he’s a doofus, guilty or not.
I’m sure glad Scott’s obsession with me, having had the effrontery to posit a higher standard for lawyer honesty than the public at large (the HORROR), is still in full flower. Nonetheless, since the nuance of my piece escaped him, let me point out that just as a lawyer having his lying criminal defendant present a narrative on the stand to preserve his right to testify in his defense will lead the jury to reasonably assume he is lying his head off, a defendant, not all defendants but certainly Blago, who chooses not to testify creates a reasonable suspicion—an additional one—that he is guilty.
Massachusetts, by the way (I am not a pseudo lawyer–I’m a Massachusetts “pseudo lawyer,” an active one, and Mass is one state that permits a rebuttable presumption of guilt from a witnesses invocation of the 5th Amendment. That seem reasonable to me. Now, I know Scott regards disagreeing with him as tantamount to blasphemy and per se evidence of idiocy, but you know what? He’s wrong.
I understand the legal fiction that refusing to take the stand in your own defense communicates nothing, but you know it does, I know it does, and I suspect even Scott knows it does, and we all know that no instruction would change that in a case like this. The jury wants to hear the defendant say he’s innocent, and especially when the defendant has been shouting to the skies that he’s innocent when he wasn’t under oath, they are going to be disappointed and suspicious if he refuses to do it when he is under oath. I raised the issue because it’s worth discussing, both with lawyers and non-lawyers.
The fact that I disagreed with Mr. Greenberg on one issue months ago—which he seems unable to put behind him—does not justify his making a ridiculous blanket condemnation accusing me of “miscomprehend the nature and purpose of such rights and choices.” He intentionally mischaracterized my post, in which I clearly and careful did NOT say that Blago’s failure to testify was “proper evidence of guilt”, any more than shifty eyes, and facial expressions during trial are “proper evidence of guilt.” But since Scott’s passion seems to be personal insults and professional denigration, I am not surprised. I’m just surprised that people like you, Mark, encourage him.
For those who accept Scott Greenberg’s misrepresentations without bothering to read the source, here is the key statement from my post:
“It’s not fair to conclude that Blago is guilty because he won’t take the stand, but I think it is fair to strongly suspect he’s guilty after he promised to explain everything and yet when his opportunity came, refused to do so. It’s not his exercising his rights that is so suspicious; it is the bait-and-switch scam he’s been giving to the public since the beginning. It is one more reason not to trust him or what he says.”
Go ahead: explain how that statement says that Blago’s failure to take the stand is “proper evidence of guilt.” Then explain how Scott can question MY credibility.
I apologize to Scott for repeatedly misspelling his name. It’s not as bad as maliciously denigrating him on line, like he has been doing to me for about four months, but it’s still careless. “Greenfield.” Much as I’d like to forget it, I’ll remember, I promise.
You are wrong, Mr. Marshall, and if it is true that the invoking of the right against self-incrimination legally causes a rebuttable presumption of guilt in Massachusetts, then Massachusetts is also wrong.
Frankly, Mr. Marshall, I believe that you would be correct about how people in general perceive an invocation of the 5th. Nonetheless, factually innocent people can have very good reasons for invoking the right against self incrimination.
Mr. Greenfield, in a recent post [my apologies for having totally forgotten how to edit/modify a hyperlink -I’ll get around to fixing that] http://blog.simplejustice.us/2010/08/03/consciousness-of-guilt-and-other-fairy-tales.aspx, may have danced around an admission of the correctness of a stated position that Mr. Blago’s failure to testify will be viewed as an indicator of guilt. “Normal people project motivations on others all the time”
I suspect that the thought behind this particular post of Mr. Greenfields is attributable to this veritable tempest amongst all you teacups.