Rod Blagojevich asks for third trial, saying the judge impeded his defense

A motion by former Illinois Gov. Rod Blagojevich accuses the judge presiding over his case of bias and says the airing of more taped conversations would provide context for his deal-making.

By MARK GUARINO | Staff Writer Christian Science Monitor

posted July 26, 2011 at 9:27 pm EDT

Chicago – Former Illinois Gov. Rod Blagojevich wants a third trial.

His legal team filed a motion just before midnight Monday calling the federal judge presiding over his legal battle biased and saying he did not allow evidence they say would have put their client in a favorable light.

Mr. Blagojevich was convicted in late June of 17 counts of wire fraud, attempted extortion, bribery, conspiracy to commit extortion, and conspiracy to commit bribery, as well as trying to sell President Obama‘s former Senate seat in exchange for political favors. A first trial, held last summer, ended in one conviction – lying to the FBI – but otherwise the jury was hung on all counts.

The arguments made in the 158-page document submitted Monday are familiar to anyone who has followed Blagojevich’s campaign to clear his name since he was first arrested outside his home in December 2008.

Besides criticizing the jury selection and saying that US District Judge James Zagel ruled against him at every turn, the motion says Judge Zagel refused to allow the airing of wiretap recordings Blagojevich continues to maintain are key to providing context to the deal-making conversations played by the prosecution.

“The Court formed a closed mind to the evidence and made findings of fact,” the motion says. “The Court rubber-stamped the government’s requests.

Blagojevich has long argued that all the recordings made by the FBI be aired before a jury. He also insisted that his public record as a civil servant receive a fair assessment in the courtroom to show he had the public interest at heart regarding several of the allegations.

An example: The motion argues that Blagojevich should have been able to show his record fighting for health care and senior rights as Illinois governor following the prosecution’s airing of recordings that show him wanting an appointment as secretary of Health and Human Services in exchange for allowing Obama friend Valerie Jarrett to take the Senate seat.

The motion also included an affidavit signed by Blagojevich saying he decided to testify at the second trial based on statements he says Zagel made early in the trial in a sidebar. The former governor says the judge said he could testify that he did not realize he was doing anything illegal and that no one involved in the conversations let him know any differently. His legal team says that despite that promise, Zagel’s actions did not allow their client to make those points.

“The Court explicitly told defense counsel that the only path to acquittal was through Blagojevich’s testimony…. Yet when Blagojevich finally took the stand, he was bamboozled by the Court’s rulings and assertions throughout the trial,” the motion reads.

The motion also references an infamous, but inflammatory, phrase Blagojevich is heard saying on tape in reference to his assurance that the Senate seat will yield positive results. His legal team says one juror downloaded the phrase into his cell phone and used it as a ringtone throughout the trial, an action that said should have led Zagel to dismiss the juror immediately.

The high number of complaints in the documents is not unusual in such an appeal, says Shari Seidman Diamond, a law professor at Northwestern University in Chicago.

“It’s a general rule when you have a defendant who has been convicted of a litany of counts, where he’s going to be facing heavy prison time, that you’re going to look for everything you possibly can to see if you can overturn the verdict,” Ms. Seidman Diamond says.

A sentencing date for the trial has not yet been set. Next month the government will have a chance to respond to this week’s motion.

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