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John W. Dean

The Blagojevich Verdict: A Case Too Complex and Confusing


Friday, August 20, 2010

Chicago United States Attorney Patrick Fitzgerald aimed some of the heaviest artillery in the federal criminal code at former Illinois Governor Rob Blagojevich. Fitzgerald's indictment sought to do nothing less than eviscerate its target. The twenty-four-count indictment exposed Blagojevich to over four hundred years in prison and $6 million in fines, if convicted on all counts. It also exposed his brother Robert, who was charged in four counts, to almost one hundred years in prison and $1.25 million in fines, if convicted on all counts. (See Fitzgerald's Fact Sheet.)

The thrust of the government's case was to claim that the Blagojevich brothers and their associates had conspired to use the governor's office to shake down anyone and everyone possible when dealing with the State of Illinois, for their own benefit (campaign contributions and future employment). This alleged activity, the government contended, became so intolerably egregious that it had to be halted when Governor Blagojevich tried to sell President-elect Obama's U.S. Senate seat to the highest bidder.

At that point in time, the Governor was arrested and charged by the Federal Government and then impeached and removed from office by the Illinois legislature. (See the Chicago Tribune's chronology of events for context.)

Blagojevich Beat Fitzgerald Without Even Offering A Defense

As Blagojevich observed, Fitzgerald hurled everything "including the kitchen sink" at him: charges of racketeering, racketeering conspiracy, wire fraud, attempted extortion, extortion conspiracy, bribery, attempted bribery, bribery conspiracy and false statements. To top it off, the indictment called for the jury to find that Blagojevich should forfeit virtually all he appears to own to the government. Estimates of the cost of investigating and prosecuting Blago & Company range between $35 to $50 million, so far. Yet, notwithstanding the compelling evidence of Blagojevich's criminal behavior that was gathered for this prosecution, Fitzgerald's team fundamentally failed to make their case.

On August 17, after fourteen days of deliberation, the Chicago jury of six men and six women found that they could not reach a conclusion on twenty-three of the twenty-four counts. The jury did, however, convict Blagojevich of making a false statement to the FBI, a five-year felony. But given the charges, the false-statement verdict was equivalent to hitting the former governor with a kitchen sponge. (To put the consequences in perspective, Martha Stewart was convicted in federal court of making a false statement and served five months.)

Most stunning was the fact that Rod Blagojevich offered no defense whatsoever. While his brother Robert testified in his own defense -- and proved himself a feisty and able witness who held his own against relentless government cross-examination -- the former governor did not take the stand. Rather, his only defense was that the government had failed to prove its case against him beyond a reasonable doubt. "Zip," is how Blagojevich's lawyer described their defense.

Given the seemingly powerful -- indeed, overwhelming -- evidence of wrongdoing that emerged from six years of the FBI's wiretapping Blago & Company, many are wondering what happened with the jury. Frankly, it was because I, too, was curious that I selected this topic for a column. In addition, this is more than just a post-mortem: This trial and its outcome are still highly relevant given the fact that -- with the jury hung on so many counts -- Fitzgerald's office has announced that they will try again.

To learn what happened, and while waiting to see if any of the jurors would discuss their deliberators, I spoke with several former federal prosecutors to get their take on the case and the verdict. Given what the jurors who have spoken have said, and the reactions of my former prosecutor friends, there is little question that Fitzgerald's team blew it. As one of the former prosecutors put it, "They over-charged and over-tried the case."

A Few Blagojevich Jurors' Observations And Explanations

Within twenty-four hours of the Blagojevich verdict, several of the jurors began talking with the news media about what had transpired during their fourteen days of deliberations. Before the verdict, U.S. District Judge James Zagel prohibited the news media from naming the jurors -- although they had been profiled by their numbers. As of the time of this writing, three jurors have spoken openly with the press, while several others have refused to talk about their experience.

Based on reporting by the Chicago Sun-Times, the Chicago Tribune, the New York Times,WBEZ91.5 Chicago Public Radio and NBC's Today Show, the following is known:

Three jurors, so far, have said they do not to want to talk substantively to the press about the verdict. Juror Cynthia Parker (60) said that she had "nothing to say. I'm tired, and I'm sick." The father of Juror Jacklyn Ferino (28) told reporters that his daughter was "tired and needed a break,'' but Ferino herself later explained, "We worked to the best of our ability to come up with a verdict. That verdict was the best we could come up with. I haven't had time to even process it all yet." Juror Jesse Blue (72) was asked if he was happy with the outcome: He said, "No, but I'm not at this time prepared to give a statement."

Three jurors have spoken about the merits of the case, however: The jury's foreman, James Matsumoto (66), who served as a Marine in Vietnam and has retired as the videotape librarian for Chicago public television; Eric Sarnello (21), whose mother serves in the Army, while he works at Best Buy and attends a local community college studying criminal justice; and Steve Wlodek (36), a human-resources manager at a small manufacturing company in the area. A consensus has emerged from their comments: Namely, the prosecutors presented an overly difficult and complicated case.

Matsumoto reported that the jury was overwhelmed by the number of counts and the amount of evidence in the case. And the government did nothing to make it easy for the jury to examine the case. Rather, as Sarnello said, the jurors were frustrated by a lack of order in the government's case. "It confused some people, just the way they presented it," he reported, noting the prosecutors "didn't really follow a timeline at all."

Wlodek pointed out that the case was so confusing that it took the jury several days just to figure out how to begin to break it down, so that they could look at the components, and deal with each as a manageable assignment -- not to mention tackling the interpretation of the legal terminology involved. The prosecutor's case was so legally intricate that it required Judge Zagel to issue a textbook-sized set of instructions to the jury, which ran 100 pages. Eric Sarnello described the jury instructions as follows: "It was like, ‘Here's a manual, go fly the space shuttle.'"

The Process the Blagojevich Jury Apparently Followed

Piecing together the reports, it appears that the following process was followed: To sort out the mess, the jury first created its own timelines on large sheets of paper, charting each of the years from 2001 through the arrest of Governor Blagojevich in 2008.

Then, the jury extracted each of the crimes charged by the government, and posted them separately on the wall. Next they took "test" secret ballots on each of the twenty-four charges, only to find themselves widely divided. These results were posted beside the different charges. The jury deferred discussion on eleven of the fraud-related counts, reasoning that these charges related to the other charges, which they needed to resolve first.

As they reviewed the charges, they listen to the wiretapped conversations, and voted again, and again, and again. The margins on the votes on many of the charges remained wide: 7 to 5, 6 to 6, 5 to 7, 9 to 3 -- which does not bode well for the government's retrying the case. At one point, apparently early in the deliberations, the jurors decided to focus on the charge that the Blagojevich brothers had tried to sell the Obama Senate seat. The prosecutors had told them this charge was the key to understanding the case. They deliberated for five days on this charge, and while the margin slowly closed, they could never all agree.

The holdout juror was described as simply not being convinced the government had proved criminal conduct. Eric Sarnello says, "She wanted to hear [Blagojevich] say, 'I'll give you this for that.' . . . For some people, it was clear. Some people heard that. But for some, it wasn't clear.'' Steve Wlodek found the holdout juror "very noble," and described her viewpoint: "She did not see it as a violation of any laws. It was politics. It was more of conversations of what-ifs."

Indeed, this holdout juror was not alone. Several reporters who covered the trial also had not been convinced the government had proven its case. For example, as the case was going to the jury I read John Bohrer's analysis for Esquire -- and clearly, he had it right in calling the trial a fiasco. Moreover, when thinking like a juror, Bohrer found that he was not prepared to convict the Blagojevich brothers, notwithstanding the fact that he hated the former governor.

Fitzgerald Blew It By Over-Prosecuting His Case

Even before the jurors had spoken publicly about the Blagojevich case, I had talked with several former federal prosecutors about it. Not wanting to "Monday morning quarterback" the case, they did not wish to speak on the record. Several of them had a good newspaper knowledge of the proceedings. All of them felt Patrick Fitzgerald, who was largely invisible during the trial, had blown the case when he signed off on the indictment .

Several of my prosecutor friends recalled Fitzgerald's investigation and prosecution of the leak of former CIA operative Valerie Plame Wilson's covert identity, which landed at the doorstep of Vice President Dick Cheney. In that case, one noted, Fitzgerald had been "remarkably restrained," only indicting and convicting Cheney's Chief of Staff, Scooter Libby, while placing a dark "cloud" over Cheney during the trial that he has never explained. This was a case, another prosecutor noted, where Fitzgerald might have named Cheney as part of a conspiracy, "as a coconspirator -- which I would be surprised if he was not."

In sharp contrast, these former prosecutors opined that when investigating and prosecuting the former Illinois Governor, the only restraint Fitzgerald showed was in not indicting Blagojevich's wife (although the former prosecutors commented that the evidence suggests that she was very much involved, and noted that maybe Fitzgerald should indict her as part of the conspiracy in the retrial to force Blagojevich to plead guilty).

Overall, given the time and money spent investigating Blagojevich, the former prosecutors were surprised that Fitzgerald did not have a tighter case. As one prosecutor said, "inchoate crimes, like attempted bribery and extortion, can be very tough to sell to a jury, and it appears that Fitzgerald's strongest case involved inchoate crimes." (Black's Law Dictionary defines inchoate as: "Imperfect; partial; unfinished; begun, but not completed.")

One former prosecutor, who had read the 113-page superseding (and second) indictment -- which added eight additional counts to an already convoluted case -- thought the government had not only over-charged the case but also, when trying it, had given the jury too much information by playing some one-hundred wiretapped conversation during the trial. That was, he said, "just way too much information" and "any good defense attorney would do exactly what Blagojevich's lawyers did -- call those conversations politics as usual. And, you know, that's probably true in Chicago." He further noted, "Because no cash was exchanged, Fitzgerald is going to have this same problem when the case is retried."

Another former prosecutor offered his advice for a retrial, free of charge: "Fitzgerald should figure out how to do a deal with the brother, Robert, who now seems rather disenchanted with the former governor. Drive a wedge between them, and flip Robert Blagojevich. Or drop him. He was only involved for a few months, and probably a sympathetic character for the jury, and [his being a defendant made] the government the heavy, rather than crime-fighters."

The same former prosecutor also advised, "Drop the racketeering charges. Juries don't like them unless you've got real big-time mobsters. These racketeering charges are very complex. The Blagojevich brothers will never come off as mobsters to a jury. In short, take the strongest attempt charges, unless Fitzgerald has got some quid pro quo he did not use, and go back to court with a rifle, rather than a bunch of loose cannons. Not only is that what he should do, I suspect that is what he will do. Fitzgerald is too savvy to blow this case twice. At least I hope so, because he's spending my tax dollars and yours."

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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