CHICAGO (AP) — In deciding whether to call Chicago Mayor Rahm Emanuel or other big names to testify, attorneys for ousted Gov. Rod Blagojevich have treaded carefully because they know that such high-profile witnesses can backfire.
While Emanuel's office said Tuesday that the former White House chief of staff was notified he may be called as a witness in Blagojevich's corruption retrial, legal experts say the defense may wait until shortly before they start presenting their case to jurors Wednesday to make their final decisions.
Among the names tossed around as possible defense witnesses is also U.S. Rep. Jesse Jackson Jr. Both he and Emanuel have been under subpoena in the case since before Blagojevich's first trial last year.
"All these witnesses can end up hurting you far more than they can help," said Phil Turner, a former federal prosecutor in Chicago. "They're land mines. You've got to be really, really careful."
Defense attorneys at Blagojevich's first trial called no witnesses, and broke a pledge that the former governor would testify. Among the calculations Blagojevich's current team has to make is whether the benefits of putting someone like Emanuel or Jackson on the stand outweigh the enormous risks.
The defense attorneys have suggested they may call Emanuel and Jackson to help them argue that Blagojevich's actions and conversations were merely part of the normal give-and-take of politics.
But when it comes to anyone other than Blagojevich, the defense will have little control over witnesses' answers.
"It's Defense Lawyer 101: You don't put on witnesses unless you know exactly what they're going to say beforehand," said Gal Pissetzky, a Chicago-based defense attorney who frequently argues in federal court.
"You put (Emanuel or Jackson) on and you ask a question hoping for a certain answer, and they say something completely unexpected," he said. "That's a disaster. You're standing there in front of the jury with your pants down. "
The one comparatively predictable witness would be Blagojevich. If he's been prepared well by his attorneys and can maintain his cool under cross-examination, Turner argued that the twice-elected governor could be a formidable witness.
"He has the capability, anyway, of being very persuasive and not coming across as crazy if he puts his mind to it," Turner said.
But prosecutors, all of whom have devoted years to the case, would salivate at the prospect of being able to grill Blagojevich. They would be almost certain to ask him about his profanity-laced talk on FBI wiretap recordings about desperately wanting to make money, evidence that was at the heart of prosecutors' three-week presentation to jurors.
Blagojevich, 54, faces 20 charges at his retrial, including that he sought to exchange an appointment to President Barack Obama's vacated U.S. Senate seat for a top job or campaign cash; another allegation is that he attempted to shake down Emanuel's Hollywood agent brother to raise political contributions for the governor. Blagojevich denies any wrongdoing.
His first trial ended in a hung jury, with jurors only able to agree on one charge, convicting Blagojevich of lying to the FBI.
Neither Emanuel nor Jackson has been accused of wrongdoing. But their names came up often in the first and second trials — Emanuel's name in the alleged shakedown, and both men in testimony about the Senate seat.
Blagojevich's attorneys have pointed to Emanuel before as someone they say is adept at the art of political deals, and they may hope to imply to jurors that Blagojevich, too, was merely engaging in perfectly legal deal-making.
But Turner says prosecutors could score more points with Emanuel during cross-examination.
"Prosecutors could get up there and ask Emanuel, 'Would you ever extort someone, Mr. Emanuel?' 'Absolutely, not!' he'll say. 'Because it'd be totally wrong,'" Turner said. "That would be devastating testimony to the defense. They'll want to crawl under the desk and dig a tunnel outta there."
While Blagojevich's attorneys have signaled they are considering the possibility of putting Blagojevich on the stand more seriously, there's another reason why they could have second thoughts.
In federal court, if a defendant who testifies in his own defense is convicted, that testimony could be considered perjury — a finding that could add months or years to his sentence, both Turner and Pissetzky explained.
If convicted on all counts, Blagojevich faces a maximum prison term of 350 years. Federal guidelines would dictate he'd get far less, though federal can consider multiple factors in sentencing.
Blagojevich already faces a five-year sentence for the lying conviction.