In the ongoing retrial of former Illinois governor Rod Blagojevich, the defendant, yesterday, ended seven days on the witness stand, testifying in his own behalf. He had been grilled, in cross examination, for over three days. He is charged with trying to shake down executives for contributions and seeking to sell or trade President Obama's vacated US Senate seat for a top job or campaign cash. His first trial, last year, ended with jurors deadlocked on all but one count. He was found guilty of lying to the FBI. He did not testify at that trial. The government's case was, in the main, predicated on incriminating wiretap transcripts.
When faced with a retrial, a defendant is confronted with a crucial decision. Does he play the same cards or take an alternative route? Generally, the prosecution is the same. A consistent shock and awe. Any game change comes from the defense if a different strategy is available. Here, there was. Blagojevich elected to testify in his own behalf. This was a ballsy decision. It is fraught with risk which the defendant chose to assume.
In the theoretical practice of criminal law, the defendant has no burden to prove anything. He is not obligated to present any evidence. The sole burden of proof is on the prosecution: guilt beyond a reasonable doubt.
In practicality, however, I believe the defendant does have a burden: to establish a reasonable doubt. A jury, instructions of law, notwithstanding, could have the mindset of "Where there's smoke, there's fire. If the accused didn't do it, let him take the stand and say so. Let him be tested by the ordeal of cross examination." Blagojevich did just that.
In order to opine responsively, you must be present at the actual trial. I was not.
You cannot rely on newspaper coverage. But one thing occurred which is not in dispute and which could have had significant jury impact.
At the end of cross examination, as Blagojevich stepped off the witness stand, he tried to shake hands with the lead prosecutor, who had been his interrogator. He was rebuffed. He was snubbed. Picture the scene in front of the jury. The defendant, standing with an extended empty hand, after three days of intensive examination.
Was this planned or instinctive? The jurors had an up close and personal view of this. This was in layman's land. The jury's territory. They relate to this. If they thought the move was sincere, who knows, for certain, what their inside reactions were? They may begin deliberations tomorrow. We'll soon know.
If the former governor is acquitted, the verdict may have turned on a rejected handshake.
That's the stuff of jury trials.