Eric Zorn is a columnist for the Chicago Tribune. He also writes the Change of Subject blog for the Tribune. His columns often cover the courts and the legal system. Of course, he has followed the Blago saga from day one. He wrote a column this week titled "Inside Blago's Mind - Hypothetically." His point was that Blago held up surprisingly well during cross-examination because he didn't lose his temper, make any damning admissions, or collapse into a stammering mess on the stand.
To illustrate Blago's craftiness on the stand, Zorn wrote a hypothetical cross-exam scene between a prosecutor and driver on trial for offering a bribe to a police officer during a speeding stop. It is brilliant. I have pasted the entire exchange below. Zorn wanted to let the reader into Blago's mind by comparing his evasiveness on the stand to that of a hypothetical defendant. In the hypothetical case, video and audio surveillance show that when the officer approached, the driver held his driver's license out the window wrapped in a $100 bill while saying, "How can we take care of this?"
The comparison to Blago is obvious once you read the testimony. Both defendants have the ability to answer only what they want, not the specific question that was asked. However, instead of thinking about Blago when I read this exchange, I was thinking about the prosecution and the jury. Even if this alleged bribe is on video, has the bribe been proved beyond a reasonable doubt after hearing the defendant's explanation? Most people will still say yes, but, it only takes one hold-out juror to hang the jury. It's almost no use cross-examining a defendant who is this slippery. I think the prosecution's case was weakened in the following hypothetical. You be the judge:
Prosecutor: Were you suggesting that you wanted the officer to give you a pass in exchange for $100?Of course he's lying, but if he somehow sounded believable and didn't come across as a total creep, this driver might not be convicted by a jury. Just as I believe that Blago might not be convicted by this jury in Chicago.
Driver: I never said those words, no.
Prosecutor: I didn't ask if you said those words, I asked if it was your intent to convey the idea that if you gave the officer $100, he would not write you a ticket.
Driver: That wasn't my intent, no.
Prosecutor: Why did you offer him $100?
Driver: I'm a big supporter of first responders. I didn't say it, but my thinking at the time was that he would give the money to the Police Athletic League.
Prosecutor: What did you mean when you said, "How can we take care of this?"
Driver: By "this" I meant the youth-sports programs sponsored by the PAL, which I've always felt the charitable public, or "we," should "take care" of, funding-wise. I was talking shorthand.
Prosecutor: Well, you didn't want the officer to write you a speeding ticket, did you?
Driver: No, of course not. But that desire was in no way linked to my $100 donation to the PAL. Those were two separate conversations in my mind.
Prosecutor: Then why did you hand him the $100 bill wrapped in your driver's license?
Driver: I didn't hand it to him. I held it out to him, but he never touched it. In fact, I hadn't made up my mind that I was going to give him the $100 charitable donation. I was still in the gathering options phase, thinking about what I wanted to do. I might have pulled the money back at the last minute, then waited until I got home to write a check to the PAL. As I sit here today I can't tell you for sure what I would have done if he hadn't then arrested me for attempted bribery.
Prosecutor: The money was in no way linked to your desire not to get a speeding ticket?
Driver: No, I'm very scrupulous. I won't cross any lines. I wanted to be sure the transaction was legal, and I trusted that an officer of the law would never mix a conversation about a speeding ticket with a conversation about a possible charitable donation.