Fairness to Blago

Impeached Illinois Governor Rod Blagojevich stunned everyone in the courtroom, including prosecutors, when he declined to take the stand in his own defense in his corruption trial. Well-established law dictates that prosecutors may not suggest that his decision suggests his guilt, and the judge may well instruct the jury not to make any such inferences from his refusal to testify.  This is because the Bill of Rights ensures that no American can be forced to testify against himself or incriminate himself if he does: that’s why witnesses will sometimes cite the Fifth Amendment when they don’t want to answer a question. That decision also raises suspicions that the law says prosecutors can’t encourage or plant: what good is a guarantee against self-incrimination if you incriminate yourself by exercising it?

Blagojevich, however, strains this necessary legal fiction to the breaking point. Since he was kicked out of office after tapes were released that made it sound as if he was placing a U.S. Senate appointment up for auction, Blago has proclaimed his innocence in every medium imaginable, from radio talk shows to TV reality shows to his Twitter account. Now, when he has the chance to face his accusers and explain everything, in person, in front of a jury, he suddenly clams up. Why?

Well, probably because he’s guilty. I know innocent defendants are often told by their lawyers not to testify; I’ve advised innocent clients to stay off the stand myself. Maybe they are inarticulate and easily confused. Maybe they have a poor demeanor, or have a tendency to get angry. A tough cross-examination by a good lawyer can make anyone look bad.

Still, I don’t see how any of these factors could reasonably apply to the former governor of Illinois, an experienced public speaker who is comfortable in the spotlight. Indeed, the scuttlebutt from the trial is that his attorneys felt  he couldn’t hold up under cross-examination, and that prosecutors had some “perjury traps” up their sleeves, rebuttal witnesses or other evidence that could disprove Blagojevich’s testimony.

The requirement that a defendant’s decision to exercise the right not to testify should not incriminate him is necessary and fair. So is a juror making reasonable assumptions from a defendant’s choices, particularly when the choices seem to contradict months of public statements by the defendant that once the public heard the whole story, he would be exonerated. 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.

Is it fair to think Rod Blagojevich’s refusal to testify indicates that he’s been blowing smoke all these months  he’s been claiming to be an  innocent, railroaded victim of political combat?

Sure it is.

UPDATE (7/27/10): As Rod’s trial neared an end, his defense attorney got in a heated dispute with the judge for forbidding him from inviting the jury to make some conclusions regarding the fact that the prosecution didn’t call significant witnesses it might have. Talk about a risky tactic: how would a jury distinguish between the significance of  uncalled witnesses on the prosecution side, and  officially and constitutionally impermissible conclusions about the most notable non-witness of all, Blagojevich himself?

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