The amended jury instructions submitted by the Government on July 27, which I assume were the ones given to the jury since the defense said none or almost none of their objections were accepted by the court, are practically incomprehensible, even for a lawyer. Instead of clearly stating the numerous alleged acts of racketeering, they are referred to by number in a chart, and they are presented in the alternative or in multiples with other counts.

It's easier to show than to describe, so I'm posting some selected portions of the Indictment, instructions and the verdict form on the first Racketeering count. The highlighted yellow portions on the instructions are my doing, they are not highlighted in the original documents.

I'm not surprised the jury doesn't know what to do next. It's not a question of can they agree Blagojevich did "X" but that they can't agree on what the "X" is. Since they have to be unanimous on at least two "X"'s, and they are stumped on what some of the "X"'s are, they don't know how to go any further on those counts. They probably have resolved all the other counts and that's what behind the question as to whether they can submit verdicts on just some of the counts.

Here are the charges they are deciding, according to the instructions:

Defendant Rod Blagojevich is charged with: racketeering (Count 1), conspiracy to commit racketeering (Count 2), wire fraud (Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13), attempted extortion (Counts 14, 15, 19, and 22), conspiracy to commit extortion (Counts 17 and 21), bribery (Counts 16 and 20), conspiracy to commit bribery (Counts 18 and 23), and making false statements to the government (Count 24).

Defendant Robert Blagojevich is charged with: wire fraud (Count 4), conspiracy to commit extortion (Count 21), attempted extortion (Count 22), and conspiracy to commit bribery (Count 23).

Here's the verdict form they have to fill out on the first (substantive) RICO count.

Here's how the racketeering acts for count 1 are described in the Indictment.

Now look at these instructions on the racketeering acts culled from the Government's 136 page submission (again, highlights are by me): One, Two, Three, Four, and Five.

Here's one of my favorite head-scratching paragraphs in the instructions:

Each of the Racketeering Acts described in Count 1 is numbered and some consist of two or more different offenses set out in separate, lettered subparagraphs [(a), (b), (c), etc]. To prove that defendant Rod Blagojevich committed a particular Racketeering Act that is made up of two or more offenses, it is sufficient if the government proves beyond a reasonable doubt that the defendant committed at least one of the offenses identified in the subparagraphs of that Racketeering Act. However, you must unanimously agree upon which of the different offenses alleged within a Racketeering Act defendant Rod Blagojevich committed.

This page sums it all up. I don't know how anyone expects the jury to be able to figure out what the alleged racketeering acts are, let alone unanimously decide which ones Rod Blagojevich committed.

It may be they started with the racketeering counts, couldn't figure them out and went on to resolve all the other counts against both Rod and his brother Robert, determined to return to them at the end. They may now be at the end, and still can't agree on what the acts are, preventing them from reaching a verdict on them.

What should happen: If the jury can't agree on what the racketeering acts are, they can't unanimously agree that Rod Blagojevich committed any two of them (or agreed that someone else would commit them) and they can't find him guilty of the racketeering charges in Counts 1 and 2. (Again, they have to unanimously agree on at least two racketeering acts to find him guilty.)

I don't think this jury is divided, I think they are hopelessly confused. Who wouldn't be given the incredibly confusing instructions?

Of course, this is all speculation on my part, but I haven't seen anyone come up with a better theory.

Update: I just saw this Chicago Sun Times blog post with Robert Blagojevich's lawyer's comments. He too suspects it's the RICO counts:

Lawyers are now scratching their heads, trying to figure out what that means, attorney Michael Ettinger said in a press conference at around 4:50 p.m. The jury might be saying they cannot reach a verdict on the racketeering charges, Ettinger speculated. That's a lengthy and complicated charge that is divided into six separate "acts."

Update 8/12: Now knowing the jury has decided only two counts, it seems to me these are the two counts the jury voted on and they voted not guilty. Here's why. Whether it was easier for the jury to find there was no enterprise proven than waddle through the racketeering acts, I don't know, but I think these counts are now gone. Keep in mind though, reading tea leaves is no sure thing, it's just speculation.