Sam Adams. A beer (and a darn good one at that). A founding father. Almost President. A lawyer with the balls to do his job. Pick ’em.
Sam Adam(s) Jr., is defending Rod Blagojevich in Chicago, where the judge, James B. Zagel, is trying to micromanage his summation. From the AP :
Judge James B. Zagel sent the jury home for the day after Blagojevich’s attorney Sam Adam Jr. complained the judge was gutting his closing arguments by not allowing the defense to mention witnesses that prosecutors did not call.
Prosecutors had mentioned some of those witnesses, including convicted fundraiser Antoin “Tony” Rezko, in their closing argument, and Adam argued the defense should be able to do the same.
“Your honor, I have a man here that is fighting for his life,” Adam said, turning red and raising his hands.
Zagel responded: “You will follow that order because if you don’t follow that order you will be in contempt of court.”
“I’m willing to go to jail on this,” Adam shot back.
How many of you have the stones to say that to a judge? After all, it’s so much easier to turn to your client and say, “but you heard the judge. He won’t let me.” Certainly your client, even if it happens to be someone as universally despised as Blago, would understand and forgive you for not putting your own butt on the line.
Yet, there’s a problem. What the heck is Judge Zagel talking about? There are certainly a bundle of rights involved here, but they all belong to Blago. One of the premier rights is the right to present a defense. Included in that right is the ability to point out to a jury the failure of the prosecution’s proof, which includes the absence of witnesses who the government might have called to support its contentions but didn’t. The defendant’s decision not to testify is a matter of right. There is no parallel right for witnesses, and certainly no similar right for the government to keep its witnesses failure to testify from the juror’s delicate ears.
The government spoke about missing witnesses, yet the defense is precluded? Why would that be, Judge?
Zagel said he was giving Adam the night to rework his closing arguments, given his “profound misunderstanding of legal rules.” He said Adam could designate another defense attorney to give the closing if he couldn’t follow the rules.
A regular misunderstanding, apparently, gets you a slap in front of the jury. A “profound misunderstanding” gets you an extra day. Yet the judge neglects to mention what rules Adams profoundly misunderstands. This concerns me, since I profoundly misunderstand them as well.
The yeoman’s reaction to a ruling like this is to protest, make a record, and move on. But Sam Adam is no mere yeoman. He knows that there will be no better chance to beat the case than here and now, before the jury. On appeal, everything flips over and all presumptions are against him. On appeal, the sensibilities of judge rule, while the understanding of real people are lost. No, one doesn’t give away a critical part of the defense lightly.
But how, you wonder, can Sam Adam take the risk of being held in contempt for violating the court’s ruling. Won’t that interfere with his twitter use, his blogging, his social media availability? Why yes, it most assuredly will.
This is what it means to be a criminal defense lawyer, standing between a client and everyone else in the world. Not that you disobey a judge’s order on a whim or lark, or even when you think the court is wrong. What it means is when your client is about to lose a fundamental right that he can never be recaptured, that is so egregiously harmful that there is no redress available, that the basic purpose of this exercise called law is about to be flushed down the toilet, you make the decision whether your personal comfort and convenience rises above your duty to your client. The times may be rarer than rare, but there are time when you take the hit for your client.
It’s hard to say whether this is the time that Sam Adam Jr. should face Judge Zagel and say, “do what you’ve got to do, I’m going to defend my client.” That’s his call entirely. If he should decide to do so, given the court’s ruling, it would hardly come as a shock.
But somewhere in your career as a criminal defense lawyer, you will be faced with the decision of whether to risk your freedom to do what’s right. When that happens, make the choice that Sam Adam would make. All of them.
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I would like to think I have balls like that. If he gets held in contempt, will that change the judge’s ruling or will it just have Mr. Adam’s end up in jail with the same end result?
I dunno. Kudos for the stones, I guess, but how about trying something that might actually work?
Sounds like Adams didn’t already seek a missing-witness charge, which would have enabled him to close on it. Or he asked for one and it was denied. There must be some actual legal argument he could have raised here, but I’m not seeing it.
Can’t help thinking there’s too much bluster and not enough skill.
Such a non-sensical ruling, expecially if it was su sponte, indicates a deep seated bias in favor of the state. I would go after the hack with a recusal. If no relief, make it political theater. This is scary stuff and licenses can be at risk as well as liberty. I wish Mr. Adams Godspeed.
Always a question, M. What do you think this would do? What do you think would happen if Adams lets it slide? Is it necessary at times to push it to the extreme to make the error “harmful”?
Unfortunately, I only have as much info as the AP chose to write, but it would seem pretty clear, given a ruling that he couldn’t raise it on sum, that he wasn’t getting a missing witness charge. Then again, since the prosecution raised missing witnesses in summation, maybe the defense close has to deal with the government’s argument?
But I wouldn’t jump to the conclusion that it bluster rather than skill. He’s a very skillful lawyer, and has stones to boot. Sometimes, it takes skill plus bluster. And stones are always good to have. Sometimes, rarely but sometimes, that’s the only thing a lawyer has left in the fight, and it’s put up or shut up time. It may not work, but he won’t give up without trying.
I dunno. Why go this far when all he had to do was strenuously object?
You’re right, I do have questions because normally I read the posts and then they make me ponder. I should probably come back once I’ve thought them through. Adams needs to do what he thinks is the best thing for his client. Since I don’t have all the facts, it’s hard for me to say what that might be. It makes a point, a very strong one, if he gets held in contempt. And, I always kinda like it when a CDL takes one for his client. Too often (especially in MD) it’s the other way around.
If he lets it slide, he has preserved the error for appellate review, which is what he is supposed to do. So, it’s not really letting it slide, it’s letting the system work how it’s ‘supposed’ to. And we know how that goes.
Another question – if the judge holds him in contempt, what happens? Mistrial maybe?
I would expect that the contempt sanction will be dealt with after the verdict is returned. But there is no stronger way to make a point than to take a stand. Is this the right time, the right point? I dunno either. I just admire the fact that Adams is willing to do so if he believes it is. Most CDLs wouldn’t consider doing anything that would interfere with Happy Hour.
Harmless error.
Ah, of course. Zagel is a federal judge. That explains it. Cook County judges are more respectful of the lawyer they’ll use when they’re indicted for taking payoffs.
Doesn’t Cook County have the best judges money can buy?
I would hope to see Mr. B get the best defense possible at this time. I don’t quite see how the defense attorney’s being charged with contempt is going to help the case.
Jdog, I wasn’t able to look at your website long enough to figure out whether you’re a lawyer, so if you don’t know: “harmless error” is the doctrine that says, basically, “even if the judge ruled incorrectly or your rights were violated, you have no remedy if the appeals court thinks you’re guilty.”
I don’t know whether Jdog is a lawyer or not, but I do know this: He cracked a joke that sailed right over your head.
Arguing with a judge in the courtroom is the most difficult the first time. Luckily, the vast majority of judges I’ve appeared before were reasonable and very fair to the defense.
One added complexity for me was the fact that, when I first argued with a judge I was a Captain in the Army, and he was a Lieutenant Colonel. So, the added issue of military rank was present. However, I was sufficiently ticked-off, so it basically just happened.
Good for Sam Adams. I hope he is able to make a complete argument.
Eric
Jdog is not a lawyer. Jdog cracked a joke that sailed right over their heads. Thanks for straightening that out, Patrick.
Hopefully he makes the exact same argument, and the judge blows his lid right in front of the jury.
I’ve been emboldened by all the judges with no stones. I’ve been threatened with contempt, serious threats, at least 5 or 6 times. I’ve heeded the threat once, maybe twice. Not a one of them has cuffed me. I’ve got a lot of years left, I’m sure it will happen eventually. Long as they don’t fine me.
Yeah, I don’t want a fine either. My operating account doesn’t have enough dough.