Part of the reason for that non-ruling was because the judge said the motion was not "noticed up," meaning it was not properly brought before the court. The defense team says that it will be, but given the judge's remarks on Monday, that may not have much impact.
"A very compelling argument could be made that a judge has to consider all the people, including the taxpayers, and he has some authority to make some decisions," said Blagojevich attorney Sheldon Sorosky. "But that's for judges to decide, not I."
Since the end of the first trial, the Blagojevich defense team has contended that a second trial would be a waste of taxpayer's money since taxpayers in round two are paying for both prosecution and defense. Furthermore, defense lawyers were months behind in getting paid by a federal program that cuts their checks.
Therefore, the Blagojevich team wanted the judge to sentence the former governor on his one count of guilt for lying to the FBI and then call off the second trial.
Such an arrangement was not part of any plea agreement, and prosecutors reject it. The ex-governor insists he never lied to the FBI.
On Monday, Judge James Zagel said the motion was never properly presented, so he would not rule on it, and further, that it was "intended for an audience different than the court, and that it would "probably vanish into thin air".
"Whatever judge Zagel says, he says," said Sorosky. "We're toiling under some difficult vineyards, but we'll proceed ahead."
The defense will re-present the motion, though the judge says he does not have the authority to flat out scuttle a second trial, and that the motion will likely go away on its own.
The judge said again Monday that Blagojevich's effort to have additional phone conversations played at trial will likely happen only if the former governor takes the stand to lay the groundwork for them. Blagojevich said he would testify in the first trial, but he did not do so.
Will Blagojevich take the stand in the second trial?
"Absolutely, absolutely, absolutely - we've made those decisions, but we can't tell you," said Sorosky.
The revised, streamlined indictment of the former governor has not yet been presented to the court, but it will be presented soon.
Prospective jurors will be filling out questionnaires beginning April 20th, and jury selection will begin shortly after that.
