Blagojevich closing argument has begun

Sam Adam, Jr., the attorney for Rod Blagojevich had a heated argument with the trial judge about whether Adam could argue in closing that the witnesses not called by the prosecution would have supported Blagojevich's defense.  The judge threatened Adam with contempt if he violated the court's ruling that the defense could not argue about the "witnesses not called."  Today the judge smoothed any ruffled feathers by emphasizing that the judge never used the word "jail" during the hearing.  "Jail" was the word that Adam used.

Regardless, this story suggests that while Adam may have been upset because the judge's ruling shut down an important theme for the defense, it's possible that Adam was just stalling for time so that his closing wouldn't be broken into two pieces across two days.  Gee, would a trial lawyer ever use smoke and mirrors to buy time to set up a better closing?

In my trials, in civil practice, the "witness not called" was a standard jury instruction, but of course the judge has enormous discretion over the trial and, for all I know, criminal trials differ from civil trials on that point.  Even when you could make an argument on that point, you couldn't tell the jury what the witness would have said; you could just mention, for example, that the plaintiff corporation never called the Senior VP who was present at the key meeting, or something like that.  The Huffington Post has a nice article on the issue.

[edit]  Talk Left has a nice discussion of the "missing witness" instruction in criminal cases and it does appear that the instruction is disfavored and largely left to the judge's discretion.

The irony, of course, is that the real "witness not called" is Blagojevich himself -- and for that matter the defense didn't call any witnesses at all.  In fact, Adam had promised jurors in the opening statement that Blagojevich would take the stand.  I am not denigrating the Fifth Amendment or the fact that the burden rests entirely on the prosecutor.  (And, of course, in closing arguments prosecutors cannot overtly call attention to the fact that the defendant didn't take the stand.)  But when a criminal defense counsel makes a "witness not called" argument, there is always a concern about what thoughts that might trigger in the jury's mind, especially when the defense didn't call any witnesses.

In his closing, here's how Adams is dealing with his promise that Blagojevich would take the stand: "I promised each and every single one of you that Rod was going to get up there and take the stand," Adam says. And at opening statement I gave you my word and I meant every word of it," he says. "I had no idea no idea that in two months of trial (the government) would prove nothing."

Comments

[Rick Underwood]

It's hard to say much about this because I don't know the context. Where the prosecution fails to call a witness "peculiarly available to the prosecution" some adverse inference might be drawn. But the door should not be open to making stuff up, with the lawyer essentially testifying about or injecting facts not of record.

[Laurel Rigertas]

I agree. It seems to me that, even without mentioning what a witness would have said, the mere mention that a witness was not called by the other side infers that witness had evidence helpful to your client. Because such evidence was not presented, it seems appropriate to ban the reference.

As an aside, this might be an interesting topic for those of us who teach PR/ethics - when, if ever, is it appropriate to disregard a judge's orders? I remember as young litigator hearing about a senior partner who was jailed for disobeying a judge's order; he was considered a hero at the firm -- a real zealous advocate. When is refusing to obey a judge's order proper zealous advocacy and when is it conduct prejudicial to the administration of justice?

[John Steele]

Thanks, Rick and Laurel,

I'm trying to find the standard jury instruction in civil cases. Here's the "better evidence" instruction, which has a similar use.

California Civil Jury Instructions (CACI)
203. Party Having Power to Produce Better Evidence
You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.
New September 2003

[Rick Underwood]

There are also some old cases about the prosecutor's failure to call "res gestae" witnesses. In such a case an adverse inference might be drawn. Again though, without knowing who the witnesses are, and their connection to Blogo and his alleged misdeeds, it's hard to comment on the judge's ruling. In any event I agree with the Huffington piece - we do not want to invite lawyer testimony about what witnesses would have said if they had been called. I suspect that we will hear some of this though. Damn the torpedos and full speed ahead! As an observer with no stake in the outcome, I rather enjoy it when all hell breaks loose. Gives me something to write about in my litigation ethics book. Also, there is the Schadenfreude factor. Keep us posted.

[Rick Underwood]

There is a good post on the "missing witness instruction" citing federal criminal caes on the TalkLeft blog, July 27, titled "Blago adds lawyer for jury instruction issues."

[John Steele]

Rick,

Thanks. I've edited the post to incorporate that.