The trial of former Illinois Governor Rod Blagojevich took an unexpected twist when the judge threatened to jail defense lawyer Sam Adam, Jr. for contempt of court.
Outside the presence of the jury, Mr. Adam told Judge Zagel he intended to state in his closing argument that the jury may draw an inference about people who were named in the indictment, and who were frequently mentioned by other witnesses and by the prosecution, but were never called to testify against the Governor.
(For example, fundraiser extraordinaire, Tony Rezko, who previously pleaded guilty to corruption, did not testify. Alleged victim of a Blagojevich shakedown, turned White House Chief of Staff, Rahm Emanuel, did not testify. Horse tranquilizer addict and master raiser of campaign donations, Stuart Levine, who previously pleaded guilty to corruption, did not testify. The list goes on; in fact, sources say the government’s sealed witness list contained 600-800 names; however, the government only called about 35 witnesses in total.)
But, Judge Zagel instantly refused to allow Mr. Adam such an argument and warned him:
“If you don’t follow that order you will be in contempt of court…maybe you ‘didn’t get the memo’ last week, but you cannot draw an inference on the fact that they [the prosecution] did not call a witness…it is not a fact, based on what an inference is drawn; therefore it is not admissible. It is not evidence. It doesn’t mean anything because it doesn’t have any materiality. It is not permissible under the Federal Rules of Evidence. It is not the law….maybe in some places, but not here…It does not do your client any good to have his laywer held in contempt…it may or may not be personally satisfying…”
Mr. Adam respectfully, yet passionately, responded to the court, “I am willing to go to jail on this because I cannot effectively represent my client.”
As Mr. Adam contemplates the court’s admonishment and whether it is not “good” to be held in contempt of court, he shall not forget that over 47-years ago, Dr. Martin Luther King, Jr. was jailed for contempt; he shall not forget Dr. King’s open-letter on April 16, 1947, from the Birmingham County Jail.
This case is no longer about Rod Blagojevich; this is about fairness and equality. This is about justice.
“Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial ‘outside agitator’ idea,” wrote Dr. King.
Judge Zagel told Mr. Adam that “certain courts may allow” for the defense to make an inference but, in his court, he would not allow the suggestion. All courts must have “mutuality”; all courts are tied together; the judge’s decision in this case, affects all defendants indirectly, whether in Illinois or in Alabama. In the future, any man can be charged with any crime, the prosecution is not required to reveal a victim’s true identity on the witness stand or subject him to cross examination, and the man’s defense cannot suggest the jury consider, “Why did not this victim appear in court?” Judge Zagel essentially said, “You cannot even plant the seed.” An injustice in Blagojevich’s trial is a threat to justice in all trials.
Dr. King continued:
“One may want to ask, ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’
I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
Judge Zagel told Mr. Adam that the law does not permit Mr. Adam to make inferences to the jury with regard to the prosecution’s failure to call key witnesses. According to the judge, the law does not allow Mr. Adam to ask the jury to consider why President Obama was not called to the stand, even though the government said, “Blagojevich tried to shake down Obama”. Meanwhile, according to the judge, the law does not prevent the government from creating inferences. For example, the government inferred the Governor’s wife, Patti, accepted money she did not earn, even though it did not put the person who paid her the money, Tony Rezko, on the stand to corroborate the claim. The government also inferred that Jesse Jackson, Jr. knew about the discussions between the Indians and the Blagojevich camp with regard to his desired-appointment to the Senate seat. The prosecution, however, made this inference without calling Jackson (or any members of his staff) to the stand.
Mr. Adam has a moral responsibility to disobey this unjust law. Mr. Adam told the court that he is prepared to go to jail. He shall not waver in his decision. He shall accept any punishment because, as a result of his disobedience, he will awaken the legal community and the citizens of this country.
Mr. Adam has a duty to demand that there shall always be an inherent fairness in a criminal trial.
Tamara N. Holder is one of the nation’s rising attorneys and legal analytical stars. She is a Contributor for the Fox News Channel. She has received recognition from some of the country’s most respected people, organizations and publications. Tamara founded The Law Firm of Tamara N. Holder, LLC in 2005. Her work includes: criminal defense, expungement, race discrimination, police brutality, public policy, and pro bono practices. Seeing the need for outreach in this area, Tamara founded www.xpunged.com, a practice that provides a second chance to those individuals who have expungeable offenses under Illinois law.