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Jul 27 2010

If It Were Easy, Anyone Could Do It!

Representing a hated or disgraced figure in a high-profile case is no easy task. Not only are you faced with the regular burdens of trying a difficult case -stress, increased workload, etc – but you have the ever hungry media crew and the disapproving looks and comments of those around you to contend with. (“How can you  stand to represent him?”)  In a future blog post I will be talking about how to humanize such a person (or a corporate defendant) but today I need only point to Governor Rod Blagojevich’s lawyer, Sam Adams, Jr. as an example of how its done at its best.

The man is no stranger to difficult cases with notorious defendants.  His last big case was his acquittal of musical artist R. Kelly on child pornography charges.  But in a Chicago courtroom yesterday, Adams went toe to toe with the judge on the case.  Adams requested that the judge, James Zagel, permit him to inform jurors in his summation that many of the disagreeable Blagojevich cohorts mentioned by the prosecution were not called to testify. He was told no.

“You cannot draw an evidentiary inference from the fact a witness was not called by the other side when you had an equal right to call them,” Zagel said.  What? Adams then argued that the prosecutors had mentioned all of these folks as witnesses in their opening and closing statements, yet did not call them – that’s what makes it OK for Adams to mention their failure to call them. Zagel still said no dice.  Zagel tried to insult Adams by telling him he was  giving Adams the night to rework his closing arguments, given his “profound misunderstanding of legal rules.” He said Adams could appoint another defense attorney to give the closing if he “couldn’t follow the rules.”  What rules? This judge is as way off as that ump who cost that pitcher a perfect game earlier this summer.

Adams did not stop trying:

“Your honor, I have a man here that is fighting for his life.”

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,” Adams quickly replied.

A bad lawyer never would have pursued this issue in the first place, he would just be going through the motions at this point. The average lawyer would have stopped much earlier, happy to”have made the record” and preserved the issue for appeal. Go to jail for Blago? No way.  But an excellent lawyer, the type of lawyer that gets entrusted with these types of cases, realizes its not just about Blago, its about your duty to be a zealous advocate for your client’s rights; its about making the record for all future defendants; its about realizing that overturning a criminal conviction on appeal  is so extraordinarily rare you need to give it your all at trial; its about being the one person in the room ready to pounce if the defendant is not getting a fair shake; and its about being willing to go to jail for all of that.

Now, for my young law students, I have to add a caveat. I am not condoning disrespect for the court, nor am I saying that you throw a tantrum whenever a judge rules against you.  You have to have some perspective and pick your battles. Look at Adams’ statement:    “I’m willing to go to jail on this,” On this.  In his opinion, this argument was central to the theme of his case, central to the argument he wanted to make to the jury. central to he defense of a  disgraced former Governor of Illinois. You have to know which issues are those kinds of issues.

But when they come up, you have to have the courage and conviction to have the sniper scope pointed at you  and your livelihood. To be willing to suffer the slings and arrows of the court, the media and the neighborhood . Adams is making the court put its money where  its mouth is – “If you think you’re so right – jail me”  Who will blink first?  Zagel or Adams?  Your guess is as good as mine.  But either way, Adams has stood up to the test and provided a shining example of what it means to truly defend somebody zealously.  Even if your client is isn’t going to win any popularity contests.

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