What's Confusing the Blagojevich Jury?

While no one other than the participants and judge has seen the entire note the jury sent out in the trial of former Illinois Governor Rod Blagojevich Wednesday, from the media description, I don't see what's so mysterious about it. The money quotes, first from the Chicago Tribune:

U.S. District Judge James Zagel, reading from a note from jurors, said they had made “a reasonable attempt” after deliberating 11 days and had done so “without rancor.”

The jury indicated it wanted to know what happens if it cannot agree on a unanimous decision on every count. The panel had matched up specific acts in the case to individual counts and was unclear on what to do next, the note said. “What is the next logical step?” the jury asked in its note. [my emphasis]

From the Chicago Sun Times:
Separately, one defense lawyer said that jurors also indicated they couldn't reach a conclusion on counts involving a "specific act."

My take: The jury matched up some, but not all acts with counts. It sounds to me like the jury is unable to resolve the two RICO (racketeering)counts (one charging substantive RICO and the other charging conspiracy to commit RICO.) The RICO counts require the jury to find Rod Blagojevich committed (or for conspiracy, agreed that some member of the conspiracy would commit)at least two acts of racketeering, and they have to be unanimous on at least two acts. [More..]

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.

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  • Display: Sort:
    I am rooting for Blago (5.00 / 1) (#5)
    by Saul on Thu Aug 12, 2010 at 11:33:51 AM EST
    His style reminds me of Emilio Estevez in the Movie Young Guns

    If your comment, Saul, does not reflect (none / 0) (#6)
    by Peter G on Thu Aug 12, 2010 at 12:51:17 PM EST
    the true spirit of TalkLeft as well as any comment ever, I don't know what does!

    Sounds about right, TL (none / 0) (#1)
    by scribe on Thu Aug 12, 2010 at 06:00:53 AM EST
    Anytime the jury instructions are 136 pages long, there is a good argument to be made they are about 120 pages too long.

    There is also a good argument to be made that the government never had a case in the first place and, knowing that, tried to hide the fact by burying the jurors in a blizzard of paper.

    For sure, the government handed Blago a whole plethora of appeals issues when it got its way on the jury instructions.

    I was thinking the same thing. (none / 0) (#2)
    by republicratitarian on Thu Aug 12, 2010 at 08:46:58 AM EST
    Fascinating, very insightful ... (none / 0) (#3)
    by Peter G on Thu Aug 12, 2010 at 09:19:44 AM EST
    to focus like that on the note's reference to "acts," which is a problem only under the RICO counts, because of the technical importance there of "acts of racketeering."

    Remember, too, how earlier we (5.00 / 1) (#4)
    by scribe on Thu Aug 12, 2010 at 09:40:05 AM EST
    at this site had noted the fiendish complexity of the RICO statute and how to prove a case under it.

    If you - as the government or a private plaintiff suing in RICO - intend to try to prove a case, you have to work exceptionally hard to make clarity the rule of your case, so as to avoid the complications inherent in the statute and give the jurors a clear road-map theory of how you think the case fits together.  You cannot throw at them the kind of logically flaccid mish-mosh 136 pages of jury instructions belie.