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Rod Blagojevich should take the stand in next trial, brother Rob says

Updated: September 24, 2012 6:25AM

Rob Blagojevich could be facing retrial right now.

Instead, he’s a free man, back in his home in Nashville, Tenn., something he attributes to a critical decision made by his lawyer — and the fact that he testified in his own defense in last summer’s trial.

Now, the older Blagojevich has some advice for his kid brother on the eve of his retrial: Take the witness stand.

“I can tell you that Rod can be his best defense.

“There are a ton of tapes that are favorable to Rod that can make a definite reasonable doubt argument. He’s all over the place in the tapes,” Rob Blagojevich, 55, said in an interview last week. “The only way that can get in is if Rod took the stand to defend himself. If he did that, I think he’d knock it out of the park.”

Rob Blagojevich’s remarks come just before his brother is set to face retrial Wednesday, beginning with jury selection. Rob Blagojevich said the two have spoken a few times since last summer’s trial and he passed along the advice over the phone.

Rod Blagojevich will be retried on 20 charges, including the accusation that he tried selling President Obama’s vacant Senate seat. In August, a jury convicted the former governor of one count and deadlocked on 23 other charges. The jury deadlocked on all four counts against Rob Blagojevich.

Prosecutors subsequently dropped their case against Rob Blagojevich, which was more narrowly focused than his brother’s.

U.S. District Judge James Zagel had ruled in last summer’s proceedings that many of the recordings the defense wanted played could not be heard unless Rod Blagojevich took the witness stand.

Though he said he would take the stand then, the former governor didn’t testify after his lawyers advised against it — something criminal defense lawyers often advise against. Rob, who faced fewer potential pitfalls by taking the stand, said that the decision is best left to his brother and his attorneys.

On Thursday, Rod Blagojevich’s lawyer, Sheldon Sorosky, said he wouldn’t make the call in this trial until the government rested its case.

But what does big brother think Rod Blagojevich would say about some of the explosive recordings, including when he describes the Senate seat as “f------ golden?” Or when he’s heard on tape asking for a job for his wife, Patti, while discussing the Senate seat appointment?

“Those are things that he’s got to be prepared to answer and explain,” he said. “The real question is was he trying to exchange a governmental action for Patti getting something, and the answer is no, he’s not. He would have to explain that, and I think he could.”

The former governor is accused of trying to win benefits for himself and his wife by leveraging his power to appoint someone to the Senate seat as well as other governmental acts.

Rob Blagojevich dispenses the advice even as the onetime Chicago native said he wished his brother had been more supportive through their ordeal.

“You would have thought these circumstances would have brought us closer together,” Rob said. “But that did not happen between the two of us.”

He said he thought testifying in his own defense largely contributed to his later walking free.

At least one juror who said he wasn’t swayed by Rob Blagojevich’s testimony said, despite that, he didn’t think he should face retrial. Rob’s lawyer, Michael Ettinger, said he believes the jury vote on his client (9-3 in favor of acquittal in at least some charges) made prosecutors realize they would have had much to overcome in a retrial.

Rob was accused of scheming with his brother to accept money from fund-raisers in exchange for the former governor appointing U.S. Rep. Jesse Jackson Jr.

But the biggest part of not having to face a retrial, Rob believes, was a critical decision by Ettinger.

After last summer’s trial, Ettinger balked when prosecutors called with an offer to try Rob separately — not with the former governor. They proposed that Rob be tried after his brother.

“I said: ‘No way. If they want it, I don’t,’ ” Ettinger said.

Prosecutors then dropped the charges.

“If not for that, another trial would be hanging over his head right now,” Ettinger said.

Ettinger said Rob is not expected to be called as a witness in his brother’s re-trial. And if he was to be asked by the defense, he’ll tell his client to invoke his right to take the Fifth Amendment and urge trial attorneys to read a transcript of Rob’s testimony.

“They dismissed without prejudice,” Ettinger said. “That means he still could be recharged.”

Rob Blagojevich has spent the last seven months taking back his life, he said. He’s given some speeches to schools and clubs about his battle with the feds. He’s tending to a real estate business, one that he said he largely ignored in the time from his brother’s arrest in 2008 to his freedom from charges Aug. 27.

“It’s really like food tastes better, sunshine is a little brighter and life is just a little better than it has been the last couple of years,” Rob Blagojevich said.

“We’re stronger as a family. We’re going forward with our lives.

“That’s where we are.”

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