Dec 11, 2008 5:14 pm US/Central
Legal Scholars Weigh In On Blagojevich Defense
CHICAGO (CBS) ―
Over the last few days, Gov. Rod Blagojevich has been vilified and seemingly portrayed as the most evil politician to walk the planet since Saddam Hussein.
How is he ever going to convince a jury that he is not? His current lawyer is not talking, but some other notable attorneys are weighing in. CBS 2's Mike Parker talked with them in a moot courtroom at Chicago Kent College of Law.
A retired criminal court and appellate court judge; a criminal defense attorney; and a former public defender -- all law professors who think that, while it might be difficult, Rod Blagojevich could prevail at trial.
"Is it possible that he could go to trial and walk away with a not guilty? Anything is possible," law professor Daniel Coyne said.
All it will take, the attorneys say, is the right defense. But they don't all agree on how to do it.
"I would probably start to look at a diminished-capacity defense, that there is some sort of organic or acquired deficiency somewhere where (Blagojevich) really can't appreciate right from wrong anymore," Coyne said.
"Diminished capacity isn't really an acceptable defense in the federal system," law professor Richard Kling countered. "It's not an acceptable defense in any system, unless it's so diminished to the extent that he's legally insane."
"I don't think that any legitimate psychiatrist or psychologist is going to say anything more than what you are dealing with here is a large ego, not someone who is mentally ill," law professor David Erickson said.
The former judge says the governor has one hope: "You have to get a jury to believe that from the outset that crass behavior, things that are distasteful that are said and done, are not always crimes."
Kling wonders if the governor can get a fair trial in Illinois. He offers this scenario as the most realistic: The governor's lawyers will tell him the evidence is so strong that he will be convicted and you will go to prison for a long time. Blagojevich would then plead guilty.
All the lawyers agreed that federal wiretaps are the toughest evidence facing Blagoejvich's legal team.
The governor is considered innocent until proven guilty.
(© MMIX, CBS Broadcasting Inc. All Rights Reserved.)
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