Rod Blagojevich Seeks Dismissal, Cites Payment Freeze on Attorney Funds

Former Illinois Governor Rod Blagojevich has filed a motion to dismiss his criminal charges, set for trial in April.

His lawyers cite the recent budgetary freeze on payments to court-appointed counsel. They say they haven't been paid in 9 months, and are unable to retain experts to challenge the Government's evidence. The motion is here.

The financial hardship .... has created a vast inequity in this case between the government and the defense. The government continues to have every resource at its disposal. Yet, the defense is stymied in its ability to prepare for trial.

Blagojevich has the right to a fair trial and to present a defense, as well as the right to effective assistance of counsel. (U.S. Const. Amends V, VI). Blagojevich’s aforementioned rights cannot be sustained under the current economic situation.

Blagojevich is asking to be sentenced now on the single count he was convicted of at his first trial, making a false statement to the F.B.I. That charge carries a penalty of up to 5 years in prison. [More...]

Blagojevich has a valid argument, although I suspect the judge would order a continuance until funds are available, rather than dismiss the case.

What I don't understand is why his counsel haven't been paid for 9 months. The statute authorizing payment for indigent defendants provides for interim monthly payments in complex cases. The Judge entered an order authorizing interim payments to Blagojevich's two appointed counsel and two appointed paralegals in February. The court also found Blagojevich indigent as of October, 2010. (Blagojevich had five lawyers at his first trial, paid for through the court from his campaign fund, which was exhausted by the end.)

A freeze on payments went into effect in late February. Here is a memo sent out on February 23. My understanding from communications sent out Friday from the Administrative Office of U.S. Courts which pays the approved vouchers, is that the freeze has been lifted as to payment vouchers approved before the freeze-lift. So vouchers approved before March 7 or 8 should be paid. The current Continuing Resolution for funding for court-appointed counsel expires on March 18. New funding is expected to be authorized then, and vouchers approved after March 8 will then be paid.

The funding freeze does not just affect Blagojevich, but a huge number of criminal cases in federal courts. According to the latest statistics released this week, for the year ending June 1, 2010, there were 100,000 federal criminal cases commenced, terminated and pending in federal court.

The Government has dropped the RICO charges and forfeiture count for the upcoming retrial. The first trial cost $3 million. The Government got a felony conviction against Blagojevich. Does it really need the extra pound of flesh? In my view, re-trying Blagojevich is a waste of our ever-diminishing judicial resources.

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    Seems like an interesting argument (none / 0) (#1)
    by jbindc on Wed Mar 09, 2011 at 02:41:08 PM EST
    "The government has no money, so I can't pay my lawyers, so the government should just forget about all those other charges."

    Also not sure what leverage he has here either.  Apparently, I'm not the only one:

    "It's silly," says Richard Kling, a defense lawyer and Kent Law School professor. "He has no bargaining power with respect to sentencing. To say I'm willing to be sentenced on something I'm already supposed to be sentenced on, is really saying nothing."


    Kling said that's not a reason for abandoning a case.

    "If he wanted to say, I want to negotiate a plea ... that might be something the prosecution might be willing to listen to," Kling said.

    The good prof is missing the point (5.00 / 1) (#2)
    by Peter G on Wed Mar 09, 2011 at 03:14:12 PM EST
    This is not about bargaining.  Blago's lawyers, who are court-appointed, are saying, "Congress claims the federal government has a cash shortage.  In fact, it is choosing to continue funding the courts, the prosecutors, and the FBI, but not to appropriate anything for the fund that pays for defense lawyers and defense experts.  Unlike the defense, the judge hasn't had to take an IOU for the last nine months, nor has the prosecutor.  The Sixth Amendment guarantees that the accuses 'shall enjoy the right ... to have the assistance of counsel for his defense.'  Since the Government has chosen not to fund that mandatory system, the charges cannot be further prosecuted.  Therefore you must dismiss."  This is not illogical, it seems to me.

    Agreed. No pay or slow pay (5.00 / 1) (#4)
    by KeysDan on Wed Mar 09, 2011 at 03:23:21 PM EST
    removes the equal footing necessary to justice.  It is an interesting and good argument.  If nothing else, payments are likely to be sped up.

    Except, (none / 0) (#3)
    by jbindc on Wed Mar 09, 2011 at 03:19:04 PM EST
    They have been paid.  Maybe not timely, but they have been paid. Seems their motion is now moot.

    Michael Dobbins, clerk of the U.S. District Court for the Northern District of Illinois, told The Associated Press that vouchers from Blagojevich's attorneys for their work on the case were submitted in mid-February and -- by happenstance -- checks were approved on Wednesday morning in Washington, D.C.

    "The checks were cut today and going out in the mail," he said. He couldn't say the amounts of the checks.

    Now, I doubt it's a "check's in the mail" excuse, as his lawyers would be back in court in a heartbeat if they don't get the checks in a few days.


    "by happenstance" (5.00 / 1) (#6)
    by Jeralyn on Wed Mar 09, 2011 at 04:21:34 PM EST
    "Just so happens" yesterday the checks were mailed. Appointed counsel don't get notification when the checks are mailed, only when the voucher has been approved. The judge didn't authorize the payments from Oct 2010 to Feb 2011 until Feb. 2011 (he granted an order for interim payments and then a nunc pro tunc order finding Blago indigent since Oct. 10.)

    The 5th and 6th Amendments require effective assistance of counsel and a fair trial, and appointment of counsel to the indigent. If the Govt. won't pay appointed counsel, it's the same as not appointing counsel. And without funds for expenses and experts, counsel can't provide effective assistance.

    I would question the "happenstance" and say the Govt cut the check when the court found out he was going to file the motion to dismiss, but the notice I got yesterday said checks were now being sent out for vouchers approved before March 8, so it probably is a coincidence.

    In any event, I'm glad Blago called attention to the problem. He got the issue a lot of national press.

    What would happen if they didn't pay the lawyer for a very violent defendant? If the lawyer (who was appointed because of a conflict with the Public Defender's office) withdrew for non-payment,  and no other lawyer would step in  because they can't be assured of being paid, wouldn't the case have to be dismissed and  the alleged violent offender released?

    I would think there could also be speedy trial implications if lawyers have to stop working on cases due to non-payment.


    The checks were mailed (none / 0) (#7)
    by jbindc on Wed Mar 09, 2011 at 04:25:50 PM EST
    To all publicly-financed public defenders across the country, so yes, I doubt it had anything to do with Blago's motion.

    And let's face it, this is a motion that has absolutely no chance in heII of winning, so this was strictly a PR move.


    it's not publicly financed (none / 0) (#8)
    by Jeralyn on Wed Mar 09, 2011 at 05:21:57 PM EST
    public defenders.

    Public defender payments weren't affected. Only payments to counsel appointed under the Criminal Justice Act to represent indigent defendants.

    These are private counsel who agree to represent indigent defendants in federal court (usually when the PD's office has a conflict). They are not public defenders. They are private counsel who accept some court-appointed cases and are paid according to a set hourly rate established by Congress. Public defenders are on salary. Their paychecks weren't affected.


    Then all of those lawyers (none / 0) (#9)
    by jbindc on Thu Mar 10, 2011 at 09:04:11 AM EST
    who are publicly funded got checks mailed out this week.  This just wasn't about Blago's lawyers. This was all over the country.

    The fact they were paid for yesterdays (none / 0) (#5)
    by Radix on Wed Mar 09, 2011 at 04:08:07 PM EST
    work, in no way guarantees they will be paid for tomorrows, in fact, the pay freezes suggest they wont.