Zagel said it was certainly within the defense's power to call those witnesses themselves, and he would have ordered that they appear.
But he suggested they never really wanted them to appear, so they could question what they might have said.
"You'd rather have a witness not appear and then tax the government for their non-appearance!"
Plus, Zagel said it was entirely inappropriate to make such a legal gambit at the 11th hour.
"You wait until the moment before closing arguments are to start, to make a big fuss about this!"
Zagel called the effort, "pure tactics" on the defense's part.
But then, in a rather extraordinary admonition, Zagel told Adam that he expected that the attorney would not be able to control himself, and he strongly urges him to make any out-of-bounds statements at the end of his argument (so that when he orders him to sit down, it will not be as disruptive).
Also, Zagel indicated it was never his intention to take Adam into custody.
"To put you at ease," he said, "jail is not in the picture."
"I don't know where they lock up lawyers for making objectionable statements."