I want to discuss the federal charges against Illinois governor Blagojevich, but I haven't had time to read the complaint yet. I note, however, that a predominant theme in the commentary on the case is how breathtakingly foolish Blagojevich and his associates were to be talking about this sort of thing when they had a notoriously aggressive federal prosecutor breathing down their necks.

This points to the possibility that Blagojevich's defenders will use what I call The Moron Defense, which comes in both positive and negative flavors. The negative flavor is this: "My client could not possibly have had bad intent. If he had bad intent, would he have talked about these transactions openly on the phone, knowing that he was being investigated? He's have to be a COMPLETE MORON to do that." The positive flavor is this: "Ladies and gentlemen, my client did not have the requisite specific intent. Quite frankly, he is too stupid to form that intent. I mean, look at him — talking about this stuff on phone conversations that any idiot should have know were probably being recorded. He's simply too much of a moron to conspire."

The downside of these defenses is that they usually don't work.

The upside is that clients are frequently quite annoying, and employing this defense allows you to suggest in public, directly or indirectly, and repeatedly, that your client is a moron. With certain clients, this can be very pleasurable. On at least one occasion I've asked to practice my closing with a client a few extra times just so I can call him a moron to his face.

In law, you take your fun where you get it.

Last 5 posts by Ken

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