Blagojevich: Reading the Tea Leaves

By Jeralyn, Section Corruption Cases
Posted on Thu Aug 12, 2010 at 07:05:29 PM EST
Tags: Rod Blagojevich (all tags)

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Since the jury won't be back until Monday, there's nothing to do but speculate on which two of the 24 charges the jury has agreed on, who they pertain to and and what those verdicts are.

This is all tea-leaf reading, since none of us really have a clue. That being said, here's my guess: They have found Rod not guilty of the RICO counts (counts 1 and 2.) As to the remaining counts, related to bribery, extortion and false statements, they are not in agreement. Some would decide guilt, others would not. (As to the wire fraud charges and acts, they said they hadn't started on those yet when they reached their two verdicts.) Here's my current thinking: [More...]

All the jury had to do to find Rod not guilty of the RICO counts was find there was no enterprise. If any element of a crime is not proven, the jury has to acquit. The enterprise element is the first element. If they found no enterprise, they don't even go on to the remaining elements in the counts, including the racketeering acts, it's a not guilty verdict.

Conversely, in order for them to have found Rod guilty on the RICO charges, they had to unanimously agree on at least two racketeering acts.

I don't think they got that far. All counts except the false statement charge are intertwined with the RICO counts as racketeering acts. Since the wire fraud offenses are also racketeering acts, and they didn't get to the wire fraud charges yet, they didn't get to consider them as racketeering acts and those have to be excluded.

With the wire fraud charges not yet considered, to find Rod guilty of the RICO counts, the jury would have to have agreed on two racketeering acts related to bribery or extortion. Had they been able to agree Rod committed (or agreed others would commit) two such acts, they would also have agreed Rod was guilty of two of the stand alone bribery and extortion counts -- in other words, they would have agreed on at least four counts. But we know they could only agree on two.

If it's not the bribery or extortion counts they agreed on, and it's not the wire fraud counts, we're out of racketeering acts for them to be unanimous on, preventing a guilty verdict on the RICO counts.

Put another way, while it makes perfect sense that they found him not guilty of the RICO counts, it makes little sense that they found him guilty. It's either they considered the RICO counts, found no enterprise or interstate commerce connection and stopped, finding him not guilty because an element wasn't proven, or it's not the RICO counts they agreed on.

On to the extortion and bribery:

Rod: attempted extortion (Counts 14, 15, 19, and 22); conspiracy to commit extortion (Counts 17 and 21),
Robert: conspiracy to commit extortion (Count 21); attempted extortion, (Count 22)

Rod: bribery (Counts 16 and 20); conspiracy to commit bribery (Counts 18 and 23);
Robert: conspiracy to commit bribery (Count 23)

Even if they had decided to deliberate on Robert first, if they were unanimous that Robert was guilty or not guilty of both counts of extortion, I think they would also have reached a unanimous decision one way or the other on the bribery count. That would be three counts and we know they only could agree on two. I also don't think they would resolve the attempted extortion but not the conspiracy to commit extortion. If they reached a verdict on one, I think they would have reached a verdict on both. So I don't think Robert's substantive counts have yet been decided.

That leaves Rod's one count of false statements to the government (Count 24). If they were unanimous on this count, what would be the other count they were unanimous on? There isn't one that makes sense. It's not the RICO, because there are two RICO counts and they haven't done the wire fraud acts yet. Without considering the racketeering acts, the only possible agreement on RICO is not guilty, and that would be three counts with verdicts. All the other counts, including bribery and extortion, are also intertwined with the RICO acts. If jurors aren't in agreement as to whether Rod bribed or extorted, with some believing he didn't, I think those who believe him innocent of the bribery and extortion would not be ready to find him guilty on the false statement count.

By process of deduction then, and again, this is sheer speculation, the only thing that makes sense in my view, given that their verdicts on two counts were reached before they started examining the wire fraud counts, is they all agreed Rod was not guilty of either RICO count. If so, it's probably because they could easily agree there was no enterprise proven, and they didn't have to reach the racketeering acts, let alone an agreement on them, to find him not not guilty.

Yesterday I thought they would find Rod not guilty on the racketeering counts because the racketeering acts were too confusing for them to match up with the charges. Today I think it's because they didn't have to even get to a consideration of the racketeering acts, having found there was no enterprise. Tomorrow, I may change my mind, but this is my theory for now. What's yours?

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Blagojevich: Reading the Tea Leaves | 3 comments (3 topical)

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Sounds reasonable though, as you say, (none / 0) (#1)
by scribe on Thu Aug 12, 2010 at 07:54:58 PM EST

it's all tea-leaf reading at this point.

I, for one, can't see them convicting him on the false statements charge (count 24). The charges are rehearsed as:

False Statement 1 ("ROD BLAGOJEVICH has tried to maintain a firewall between politics and government.")
_ COMMITTED
_ NOT COMMITTED
False Statement 2 ("ROD BLAGOJEVICH does not track, or want to know, who contributes to him or how much they are contributing to him.")
_ COMMITTED
_ NOT COMMITTED

As to alleged false statement 1, a decent logical analysis tells me that it's meaningless and can't be false and therefore cannot support a conviction.

"Blago has tried to maintain a firewall between politics and government"

OK. Assume he tried. Assume he failed. So what? It's a crime to fail at maintaining a firewall? It's a crime to not fail at maintaining a firewall?
What's a firewall?
How do you maintain the undefined firewall?
What's "politics"?
What's "government"?
How do you distinguish between "Politics" and "Government"?
Where's the line?
Can that line move?

On this alleged false statement, this is nothing more criminal than shooting the breeze with the FBI. Never a good idea, but not criminal.

As to statement #2, Blago does not track, or want to know, who contributes to him or how much they are contributing to him.

Does Blago keep a book on who contributes, or does he have people to do that for his campaigns?
Is he his own bookkeeper?
Just because he doesn't want to know something, when it gets dumped on him, does he have the superhuman ability to close it out of his mind? Or not?

You can go on and on, but the gist of it is that neither of these statements can be false because they are so vague that they cannot be true, either. They are so ill-defined and vague that no one should have thought them a suitable topic for a criminal charge.

The jury does not have to be reasonable, (none / 0) (#2)
by Peter G on Thu Aug 12, 2010 at 08:30:50 PM EST

they just have to be unanimous ... so it's doubly useless to speculate if you're using logic as the basis for your speculation. I had an appeal a couple of years ago from a case where the jury sent in a note very much like this, including the number of counts involved, and after the judge sent them back for a while to "keep trying," they eventually returned some verdicts and hung on others, and the number of verdicts they returned, in the end, was logically inconsistent with the note from a day or two earlier. You just never know. Never.

: agreed, that's why I called it (none / 0) (#3)
by Jeralyn on Thu Aug 12, 2010 at 09:30:18 PM EST

reading tea leaves! Our speculation may be somewhat educated as to the charges and instructions, but we weren't there to see or hear the evidence and we're not the jurors.