Defense attorneys continued Thursday morning to argue their motion for a rare directed verdict of acquittal from the judge, which will not happen in this case.
The defense argued there was no action, just discussions, on count 23, specifically where the government alleges Rod Blagojevich sought a highly-paid leadership position with an organization known as Change to Win, with the expectation that then-President-elect Barack Obama would help Change to Win with its agenda.
Blagojevich's lawyers also asked for count 24, making false statements to the FBI, to be dismissed, because the former governor's words to federal agents were "ambiguous."
Judge James Zagel denied the defense motions on Thursday, but he said he would take the matters under advisement. Zagel said he still not persuaded by defense arguments.
Zagel also refused defense requests to throw out some evidence, but said he might reconsider.
Prosecutors had argued that the jury should follow the money path leading through the former governor's wife, Patti, claiming that she did little work but received, over time, more than $150,000 in real estate commissions funneled to her through convicted political fixer Tony Rezko.
Defense attorneys argued Thursday that the state's case on ghost money to Patti Blagojevich was so weak, jurors should not even consider it.
"She was at meetings, she was at strategy sessions," said Aaron Goldstein, one of Blagojevich's attorneys. "There was plenty of testimony about what real estate requires, which is you prospect, you go out, you're out in the field - you're not in the office. They specifically didn't have an office for Patti."
"My question would be: If Patti was a man, would those allegations even be made?" said Blagojevich attorney Lauren Kaeseberg. "Patti earned that money, and that's what the evidence showed."
Prosecutors argued that Patti Blagojevich received two large commissions for doing absolutely nothing. After arguments Thursday, the judge ruled that jurors can consider evidence of the so-called "Patti money trail."
Patti Blagojevich had earlier been planning on testifying, according to her husband. Former Governor Blagojevich had earlier during the trial confirmed strongly to reporters that both he and his wife would take the stand.
"She's gonna testify - of course she will - we both will - absolutely - when you're being lied about like this, and you're being squeezed in some of the ways these people are doing these sorts of things, you can't wait to get up there and tell the people what the truth is, and back this up with the tapes," the former governor said earlier in the trial. "As long as you tell them the truth and you've done things right and legally, there's no risk at all."
Now, neither husband nor wife will testify. The stated reason is that the prosecution, in the opinion of the defense, has not met its burden of proof.
Many veteran former prosecutors suggest, however, that the defense realized after rehearsals that by taking the stand, the former governor would have worsened his case.
One member of Blagojevich's legal team, Sheldon Sorosky, said Thursday that the former governor indeed did want to testify during preparation.
"When we prepared Governor Blagojevich for his testimony, the governor spoke very well and very confidently, and he truly wanted to testify," said Sorosky.
The defense also argued to have transcripts of three secretly recorded calls that were never played in court given to the jury. Judge Zagel denied the request.
Rod and Patti Blagojevich, as well as Rod's brother Robert Blagojevich, who is also charged in the trial, were all not at court Thursday. The jury was also not present.
On Friday, attorneys from both sides will discuss proposed jury instructions with Judge Zagel.
Closing arguments are set to begin Monday morning. Assistant U.S. Attorney Christopher Niewoehner will go first and said he will take two to two-and-a-half hours. Robert Blagojevich's attorney, Michael Ettinger, will go next and plans to take about an hour. Then the former governor's attorney, Sam Adam, Jr., will get his turn. He is expected to take about two-and-a-half hours.
Finally, Assistant U.S. Attorney Reid Schar plans to spend an hour or hour-and-a-half on the rebuttal. Judge Zagel said he would like to complete all closing arguments on Monday.
He would then read the jury instructions to jurors on Tuesday morning, and they would then begin deliberations.
When he was told Thursday that Sam Adam, Jr., would be doing the closing argument for the former governor, Zagel said, "I note from my experience that Sam Adam, Jr., is a big believer in the force of repetition."
After he was told that Adam, Jr., planned to take two-and-a-half hours, Zagel responded: "You're sure it's that small a period?" Everyone in attendance laughed after the judge's question.
Jurors will be given more than 100 pages of instructions, reminding them of the testimony, the recordings, and specific charges, such as racketeering and conspiracy to commit bribery, among other charges. Jurors will also be given a computer and access to secret recordings played in court.
Zagel also listened Thursday to media attorneys argue in favor of releasing the names of jurors. He said he would rule on the idea Friday or Monday morning before closing arguments.
The judge said that if he goes back on his word to the jury that he would not release their names, he would risk ruining the trust they have in the only neutral person in the case.
After promises of testimony, Rod Blagojevich did not take the stand
Defense attorneys did not put the former governor on the stand.
Rod Blagojevich talked to the media over and over before and during the trial, but he decided to keep his lips sealed in court.
After promising for months he would testify in his corruption trial, Blagojevich went before a judge and said he would not take the stand, and that he was following the advice of his lawyers.
"While the jury is not supposed to be watching and listening, I do think pretrial they may have heard some of the stories," said legal expert Patrick Collins. "For him to now, at the end, say even though they promised him he's not going to do it, I don't think it was the right setup."
"Sam Adam, Sr.'s compelling argument was that the government, in their case, proved my innocence, proved I did nothing illegal," said Blagojevich after court Wednesday.
"The law is clear. The burden of proof is on the government. They did not meet their burden of proof, and I think the jury will say that," Adam said.
"The government proved that I never took a corrupt dollar, I never took a corrupt dime, not a corrupt nickel, not a corrupt penny," Rod Blagojevich told reporters.
In opening statements, the defense promised jurors that they would hear from Blagojevich.
"Did I get up and tell them he was going to testify? Yes. Did I believe it at the time I said that? Yes, I did. Have times changed? They certainly have," said defense lawyer Sam Adam, Jr.
One legal expert said jurors will be instructed not to hold this decision against Blagojevich, but some experts question whether jurors will be able to do that.
"If I was innocent and charged with a crime, I would scream my innocence to anybody who would listen and if they didn't, there must be some reason," said Prof. Richard Kling, Kent College of Law.
Jury deliberations in the case could begin as soon as Tuesday.
