Blagojevich: The Retrial and More From the Jurors

The Washington Post has an editorial today opposing the retrial of former Illinois Governor Rod Blagojevich. It labels the verdict an "extraordinary rebuke" to the Government:

With moral thunder in December 2008, the aggressive prosecutor declared that the state's chief executive was nabbed "in the middle of what we can only describe as a public corruption crime spree." Mr. Fitzgerald added, "The conduct would make Lincoln roll over in his grave." Yet on Tuesday, 20 months later, a federal jury was unmoved. In an extraordinary rebuke, Mr. Blagojevich was convicted on only one of 24 counts against him.

It ends:

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line -- the one that separates prosecution from persecution.


The New York Times has more post-trial juror interviews. The consensus among them: The charges and instructions were hopelessly confusing.

“It was like, ‘Here’s a manual, go fly the space shuttle,” Steve Wlodek, one of the jurors, said Wednesday.

Another failure of the prosecution according to the jurors: They didn't prove Blago's criminal intent.

It also became clear early on that some jurors believed that much of Mr. Blagojevich’s crass political talk — captured in hours of secretly recorded phone calls — amounted to dreamy thoughts of what he might gain, not criminal demands.

...“A lot of it came down to, ‘What was his intent?’ ” Mr. Wlodek said. “You could infer something if you looked at it one way, or not if you looked another.”

As has been previously reported, except for the charges relating to the Senate seat, this was not a case of a single holdout juror.

[T]the jurors were more evenly split over other counts against the former governor and had, at various times during their private deliberations, cast votes with all sorts of margins....The margins ranged vastly and changed as the talks went on. Sometimes, he said, the vote was 7 to 5, then 5 to 7, then 9 to 3.

The Chicago Tribune needs to get some facts straight. In its latest article, it says Blago's lawyers might not stay for a retrial because with the campaign fund depleted, if appointed under the Criminal Justice Act, they would have to work for the "bargain basement" rates of $125.00 per hour.

Another issue is how the lawyers who handle the case will be paid. The defense team for the first trial was paid out of Blagojevich's campaign fund, which had more than $2.7 million at the time of his arrest.

That money has now completely run out, meaning new Blagojevich lawyers will have to request to be paid a bargain-basement $125 per hour from money set aside through the Criminal Justice Act,

With a little checking, the paper would have learned that Team Blago was paid at the Criminal Justice Act rate of $125.00 per hour for Trial One, even though the money came from the Friends of Blagojevich Campaign Fund. This was by agreement of all parties and a Court order in June, 2009 amending the restraining order against the funds. (See Docket Entry #114.)

In May, 2009, the Government agreed to modify the restraining order so that counsel could be paid from the campaign fund only if payments were made in accordance with the Criminal Justice Act, and administered by the Court. (See Docket Entry #85.)Team Blago agreed (Robert paid his own legal fees -- the Order said that should he become unable to pay them, he could apply to have his fees paid by the fund under the same terms as the CJA, and his lawyer agreed.) Throughout the course of the lengthy pre-trial proceedings and the trial, the Court approved periodic payments to Rod's lawyers from the fund at CJA rates. The campaign fund is now depleted.

In other words, Team Blago had to agree to work at that rate or the Government would have battled for them to get none. If Rod could not afford his own lawyer, and his lawyers did not agree to work at these rates, the Government's position was that the campaign funds could not be used and Rod should not be able to choose his own lawyers. Instead, the Government maintained, the matter should be referred to the Federal Defender's office for the appointment of counsel under the CJA plan for the Northern District of Illinois. It even attached the plan to one of its pleadings.

So the Tribune saying Rod's lawyers might not stick around because they would have to work for bargain basement rates for the retrial, is both insulting and misleading, as that is what they received for the first trial.

The article also quotes a former AUSA who says:

Former federal prosecutor Dean Polales said he thinks the prosecution's case will only be tweaked, especially since jurors reported an 11-1 split in favor of conviction on many of the major counts in the indictment.

"You've got an outlier juror," Polales said. "That's hard (for the defense) to duplicate in a future trial."

The only 11 to 1 split was on the counts related to the Senate seat. On most of the 23 deadlocked counts, and on counts pertaining to all issues except the senate seat, the division among the jurors varied widely, as reported elsewhere.

This same former AUSA also opines that Rod will be disadvantaged in a retrial because the Government now knows his strategy and it can build its case around it at the retrial.

Also to be considered is what the assistant U.S. attorneys learned about Blagojevich's defense strategy, Polales said. Their case could now be built around the idea that the former governor probably won't testify and that he may not put on any witnesses at all.

The government should adjust to the argument presented by Blagojevich's lawyers, Polales said. "They've seen the defense up close and personal," he said.

Really bad advice. There is zero reason to conclude that because Rod didn't testify or present a defense at Trial 1, he would do the same at Trial 2. For the Government to adjust its strategy or build its case around that possible scenario would be a huge mistake.

The Tribune also reports that after the jurors agreed to a guilty verdict on Count 24, the false statement charge, one juror changed his vote to not guilty. After prodding by another juror, he changed it back to guilty.

In fact, according to [juror] Schindler, the group came close to being hung on all counts. He said a male juror changed his mind at the last minute to not guilty on count 24 — lying to the FBI. Schindler said he turned to the man and said: "Are you sure you don't think he did this? That he was lying when he said that?"

Schindler said the juror replied, "You're right, change it back. He's guilty." "And so we had one," Schindler said.

Other new tidbits: One juror who thought Rod was guilty of more than the false statements criticized Rod for bringing his daughters to court for the closing argument:

A father himself, Wlodek said he thought bringing in the two young girls during heated arguments seemed like a poor choice and an obvious stunt. "To bring your kids into the courtroom for something like that, there were a lot of things said there — about their mother — and I don't think it was called for," Wlodek said.

Another juror who thought Rod was guilty, and the only one so far to express hostility at the woman juror who didn't think Rod was guilty on the Senate seat counts, comes across like a loose cannon:

Grover, a former Marine, said he was outraged during the trial when he heard Blagojevich on an undercover recording telling Obama to "go (expletive) himself."

"I swear to God I thought I saw stars," Grover said. "I was going to go through the prosecution table right to him. I've never heard anything like that in my life. Tell the president of the United States to go 'F' himself. Where I come from, that doesn't happen."

The jurors report they were less convinced about Robert Blagojevich. Even Grover says, "I don't think he knew honestly what was going on."

The jurors voted 9 to 3 to acquit Robert. That's even more reason for the Government to drop him from the retrial.

Another good read: Robert Blagojevich not deterred after jury deadlocks. I won't be surprised if the Government decides against retrying Robert.

More from the Tribune: One reporter's view: No proof, no conviction, no surprise:

What has saved Blagojevich, if only for now, is lack of proof, which in the federal courthouse is far more powerful than prayer. Money wasn't shown to change hands. Explicit deals weren't caught on wiretap. The former allies who testified for the prosecution could be suspected of selfish motives. Key players never took the stand.

...It's hardly a surprise then that at least one juror — and I'd bet more — added up those insufficiencies and couldn't find him guilty. I wouldn't have voted to convict.

I would bet when the Government refiles, there will be no RICO counts and other counts will be streamlined or eliminated. While it may call Rezko and Levine, I doubt it will build its case around them. The cooperators who did testify didn't convince this jury, so why bring on the worst of the worst -- those who committed the biggest crimes and got the biggest breaks for flipping -- at a do-over trial? The risk that the jury would reject their testimony is far too great. I think the Government is well aware of the risk, which is why it kept them in the wings at the last trial, planning to call them only in rebuttal if Rod testified.

Maybe after the sting of defeat wears off a bit, the Government will rethink re-trying Rod at all. It got one conviction that will result in a permanent felony conviction, jail time and most likely Rod's permanent exclusion from national politics. Isn't that enough? What reason, besides wiping egg of their face, do they have to go through it again? Do they need his house that badly? Or are they afraid the false statement conviction will be reversed on appeal, leaving them with nothing?

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  • Display: Sort:
    jury instructions (5.00 / 1) (#4)
    by kgoudy on Thu Aug 19, 2010 at 08:59:42 AM EST
    This seems to be endemic with young prosecutors who don't understand the purpose of jury instructions. If done properly, and with thought, instructions should be a guidebook for the jury. But if argument and proselytizing are permitted in, or if the attorneys don't read them for SENSE before completing, the instructions are an exercise in confusion and frustration.

    great quote (5.00 / 1) (#5)
    by Capt Howdy on Thu Aug 19, 2010 at 10:30:10 AM EST
    oops (none / 0) (#6)
    by Capt Howdy on Thu Aug 19, 2010 at 10:31:05 AM EST
    no need to link there I guess.

    How the opinion of Mr. Fitzpatrick has (1.00 / 1) (#7)
    by oculus on Thu Aug 19, 2010 at 11:54:20 AM EST
    changed since the Libby prosecution.  

    Has Karl Rove weighed in? (5.00 / 1) (#8)
    by Jeralyn on Thu Aug 19, 2010 at 12:10:57 PM EST
    If he hasn't criticized Fitz re: Blago, or Matt Cooper, Judith Miller and the reporters he forced to testify, then yes, opinions have changed.

    Lots of people criticized Fitz for the Libby prosecution. Goes both ways, as politics always does.


    not people here (none / 0) (#10)
    by diogenes on Fri Aug 20, 2010 at 03:57:58 PM EST
    Not many people criticized Fitz for the Libby prosecution or scorned the fact that the only conviction was for a perjury trap as opposed to an actual crime (like Blagovich).

    bringing daughters (none / 0) (#1)
    by weltec2 on Thu Aug 19, 2010 at 05:38:51 AM EST
    That is a rather offensive stunt. That is something his girls will have to live with... in terms of the image of their father.

    Question (none / 0) (#9)
    by ghost2 on Thu Aug 19, 2010 at 11:13:45 PM EST
    If the Government decides on retrial on some counts, and Blagojevich decides to appeal on the one count of conviction, would there be one retrial for all the counts that either side is appealing?

    In either case, is Fitzgerald threatening a retrial so as to get Blago to agree to a plea bargain on the one count?