A federal appeals court Tuesday rejected the latest defense efforts to delay former Gov. Rod Blagojevich's impending corruption trial and at least one attorney said the team would take the case to the U.S. Supreme Court.
The decision appeared to all but wipe out any defense team prospects for pushing back the trial's scheduled June 3 start, but attorney Michael E. Ettinger did not sound deterred.
"We are going to the Supreme Court," said Ettinger, an attorney for the former governor's brother and co-defendant, Nashville businessman Robert Blagojevich.
Rod Blagojevich attorney Sheldon Sorosky, meanwhile, said the defense team is "disappointed" and would "contemplate a possible appeal to the Supreme Court."
Blagojevich and his brother have pleaded not guilty to charges they schemed to use his power as governor to fill U.S. Senate vacancies to sell or trade the seat President Barack Obama vacated after his November 2008 election to the White House. They also have pleaded not guilty to shaking down potential campaign donors.
Blagojevich's lawyers want the trial postponed while the U.S. Supreme Court resolves challenges to the federal honest services fraud law, a highly controversial statute that forms the basis for a number of charges against Blagojevich.
The appeals court said it had no jurisdiction to step into the trial court proceeding and postpone the date. It said it might have considered doing so on an extraordinary basis if charges based on the honest services law were the only ones in the indictment against Blagojevich.
But the appeals judges said plenty of other charges in the indictment still can be used to try Blagojevich if the Supreme Court wipes out the honest services statute.
Meanwhile, U.S. District Judge James B. Zagel, who has twice turned down Blagojevich requests for a delay, granted a prosecution motion and officially certified the defense effort to win a postponement in the appeals court as frivolous.
Prosecutors had requested the certification before the appeals court had issued its decision, saying it would allow pre-trial activities to continue while the appeals court considered the motion for a postponement.
The Supreme Court is expected to resolve the honest services issue in June. The law makes it illegal for officials to deny taxpayers their honest services. Critics say it is unfairly vague.
Blagojevich defense attorneys argue they cannot present an adequate opening statement until they know exactly which charges they have to fight, and that their strategy could change depending on the Supreme Court's ruling on the honest services law.
Prosecutors, who want the trial to start as scheduled, planned for the eventuality that the Supreme Court might overturn the honest services law by obtaining a fresh indictment against the brothers that added charges not pertaining to that law.
Prosecutors say if the high court throws out the honest services law, they will proceed with the recently added charges.
Courts don't typically postpone trials because of pending Supreme Court decisions, but it is in a judge's power to order such a postponement, according to DePaul University law school Dean David Yellen.
"The law is the law until the Supreme Court says otherwise," Yellen said.
Without referring specifically to the Blagojevich case, Yellen said such a delay could prevent problems down the line. He said dropping charges in the middle of a trial because the Supreme Court invalidated them would likely to lead to a defense motion for a mistrial.
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